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May 1, 2012

Comments on Breivik commentary saying "Sometimes the death penalty is warranted"

I am intrigued to see this interesting new commentary in the Washington Post authored by the always interesting Charles Lane under the headline "Sometimes the death penalty is warranted."  Here are excerpts:

If anyone personifies evil, it is Anders Breivik. The 33-year-old Norwegian violently disrupted his country’s usual peace on July 22, 2011, by gunning down 69 mostly young people at a summer camp.  A bomb he planted in Oslo killed eight others.  He did it all to defend Norway against multiculturalism, he later raved.

Yet, on one point, Breivik is not talking crazy.  At his trial, which began April 16, he pronounced the maximum penalty for his actions — 21 years in prison, or longer if the government meets certain conditions — “pathetic.”   He “would have respected” the death penalty, Breivik said.  Of course, he won’t get it; Norway abolished capital punishment long ago.

Norway has suffered deeply because of Breivik, and I don’t mean to add insult to injury. But this situation illustrates what’s wrong with banning the death penalty in all cases.  If executing an innocent man is the worst-case scenario for proponents of the death penalty, then threatening Breivik with prison is the reductio ad absurdum of death-penalty abolitionism.

Anti-death-penalty sentiment is hardly limited to Europe.  Last week Connecticut Gov. Dan Malloy signed a bill abolishing capital punishment, which means that no future Anders Breivik need fear execution in that state.  Sixteen other states have no death penalty; California voters will get a chance to join them in a November referendum.

In the United States, abolitionist arguments are gaining traction, especially claims about the high cost of lengthy death-penalty litigation and the risk of executing people by mistake. Malloy also cited a “moral component” to his decision.  Such practical and moral concerns are at their most understandable in run-of-the-mill convenience-store murder cases, where the risk of error seems relatively high compared with the benefits of punishing murder with death.

But Breivik’s was no ordinary crime.  It presents the special case of a cold-blooded massacre of children by a political terrorist whose guilt is unquestionable and who remains utterly unrepentant; indeed, he told the court that he would kill again if given the opportunity.

What is morally worse: putting the author of this bloodbath to death or letting him live, with the accompanying risk — however small — that he might broadcast his message to receptive audiences from jail, or escape, or one day litigate his way to freedom?...

The stubborn fact is that death-penalty abolitionism runs counter to one of humanity’s oldest and most persistent moral intuitions: that there should be condign retribution for the most monstrous transgressions.

Even in Norway, Breivik’s rampage caused some second thoughts. Immediately after his crimes last summer, a man named Thomas Indrebo observed online that “the death penalty is the only just sentence in this case!!!!!!” Indrebo was later assigned as a lay judge in Breivik’s trial and had to be dismissed because of his comment. That was the right call, legally.  But I wonder if the Breivik case will cause more people in Europe to ask whether there really is no place in civilization for capital punishment.

Both abroad and at home, we need less polarized debate, less moralizing — and more honest legislative efforts to reconcile valid concerns about the death penalty with the public’s clear and consistent belief that it should remain available for the “worst of the worst” offenders.

For a host of reasons, I praise Lane for connecting Breivik's crimes and Norweigian punishment to America's constant capital conundrums.  But there is a lack of important nuance in this commentary,  especially when Lane asserts that political terrorists need not fear execution in Connecticut. 

As recent developments in Rhode Island have shown (basics here and here), federal prosecutors are often eager to pursue federalcapital charges for murders committed in states without the death penalty.  I would be advise any "future Anders Breivik" that the federal criminal justice system can and likely will use its authority to seek the death penalty for any political mass murderer.  I could point any "future Anders Breivik" to the past and present federal capital prosecutions of recent US political terrorist in the form of Jared Loughner and Ted Kaczynski and Timothy McVeigh and Terry Nichols and Eric Rudolf.

I stress this point in part because I think a truly "less polarized debate" about the death penalty would make its way toward my long-stated view (see posts here and here from 5+ years ago) that that states should rarely bother to pursue capital cases and instead should regularly request that federal authorities assume primary responsibility for pursuing the death penalty in the most horrific murder cases.  Moreover, as highlighted by the reality of the federal capital case outcomes of recent US versions of Breivik, a "less polarized debate" about the death penalty's true value and import would give much more attention to its role in helping ensure the obviously guilty murderers accept a plea deal to take the death penalty off the table.  (That's how political terrorists Kaczynski and Rudolf escaped any possible execution, and I would wager that Loughner's cases ultimately cashes out this way, too.)

Regular readers know that I am a death penalty agnostic, largely because my own consequentialist moral philosophy makes my opinion on any form of punishment highly contingent on the circumstances of the crime and the administration of the punishment.  Particularly at this very contingent moment in American crime and punishment practices, I view any extreme absolutist positions, either for or against the death penalty, as appealing mostly to those who care more about feeling righteous than being wise.

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If you can't rehabilitate someone within 21 years, you're either not doing it right or they have a chronic mental disorder. If you're not doing it right, you shouldn't be incarcerating people in the first place. If they have a chronic mental disorder, they belong in an institution.

Posted by: NickS | May 1, 2012 4:20:39 PM

in your list terrorist Louis Posada Carriles is missing as are missing the soldiers of MY Lai and Iranian marxist extremist

Posted by: claudio giusti | May 1, 2012 5:43:59 PM

Doug --

"I view any extreme absolutist positions, either for or against the death penalty, as appealing mostly to those who care more about feeling righteous than being wise."

I'm not sure what you mean here. I don't know of any serious person who favors the death penalty for all murder. The most "absolute" pro-DP position is that the jury should have the ability to consider it in extreme cases of cruelty, depravity, lying in wait, murder for hire, child murder, witness murder, murder while serving an LWOP sentence for a prior murder, etc.

By contrast, there certainly is an absolutist position AGAINST the DP, namely, that no jury should be able to consider it under any circumstances, ever, no matter what the facts. That really IS more about feeling righteous than being wise.

Posted by: Bill Otis | May 1, 2012 6:23:22 PM

Bill-

What constitutes a "serious" person whose absolutist pro-d.p. views would matter? Is that confined to just those who pontificate on blogs? Are capital jurors "serious" under your definition? Because if so, you are dead wrong that no "serious" person holds absolutist pro-d.p. views. No pun intended.

Oh, and also....Timothy McVeigh. There, I've said it for you for this post from the Good Professor.

Posted by: Sysephus | May 1, 2012 6:59:19 PM

Sysephus --

"Oh, and also....Timothy McVeigh. There, I've said it for you for this post from the Good Professor."

Does that mean you approved of McVeigh's execution?

Posted by: Bill Otis | May 1, 2012 7:24:21 PM

Does anyone really think that Breivik would have been deterred from committing murder if Norway had the death penalty? He might claim that now, but I don't see why anyone should believe him. Crazy politically motivated terrorists are not the best advertisement for the death penalty - they are not going to be deterred by the consequences of their actions (think of the 9/11 hijackers), and executing them risks a martrydom effect that will outweigh any retributive benefit. I suspect Breivik would like to be a martyr, and is upset that Norway won't allow him to become one.

Posted by: Ryan | May 1, 2012 8:03:48 PM

"personifies evil"

Nothing a good exorcism cannot handle! Personally, the guy seems crazy to me. It would be a clearer case if someone killed ten people merely for financial gain. As to this "moral imperative," somehow, many societies and moral/ethical/religious traditions manage to get along okay without it. And, there is a "persistent" belief about many things, including racism, sexism etc.

Europe more than the U.S. know a bit or two about the "worse of the worst," having a more up close and personal experience of it in the life time of various individuals. Along with the realization that the death penalty will not ONLY deal with said people, their societies determined another way.

If wrong, you don't have to cite Breivik's own words to argue the point. That comes off as yes adding insult to injury. People from a nation more screwed up than Norway in various ways should also be a bit humble, perhaps.

Posted by: Joe | May 1, 2012 8:21:28 PM

Ryan --

Why should we care if a mass killer delusionally thinks he'd be a martyr? A martyr to what? Any cause to which a sane person would subscribe?

As the the DP not being a deterrent, was a maximum of 21 years a deterrent? Guess not. And since when is deterrence the be-all-and-end-all? How about just punishment? The guy is 33. Suppose he gets the max 21 years. He's out at 54. And he'll have served a little more than three months for each murder.

Do you think three months for a calculated murder of a defenseless and unsuspecting teenage kid is justice? Do you think it's justice 77 times over?

Posted by: Bill Otis | May 1, 2012 8:30:04 PM

Come November, I'll be voting against my own economic interest, but in support of the economic interest of the State of California, when I vote in favor of the initiative to repeal California's death penalty.

Maybe that's not wise, but it's right.

Posted by: Calif. Capital Defense Counsel | May 1, 2012 9:20:52 PM

Joe --

"Europe more than the U.S. know a bit or two about the "wors[t] of the worst," having a more up close and personal experience of it in the life time of various individuals."

Which is why the European nations represented as judges at the Nuremberg trials (a military tribunal, BTW) imposed the death penalty on some of the Nazi defendants.

And let me ask you straight up: Do you hold the absolutist view that the death penalty should never be imposed, ever, no matter what the facts of the murder(s)?

Posted by: Bill Otis | May 1, 2012 9:28:34 PM

Yeah, CCDC, you'll be voting to yank the rug out from under victims' families who've waited long enough. Spare us your sick morality that favors killers over the families of those they have killed.

Posted by: federalist | May 1, 2012 9:39:12 PM

federalist --

CCDC will merely be doing with his vote what he does every day with his professional life: Working his hardest to put killers back on the street and, thankfully, failing.

Posted by: Bill Otis | May 2, 2012 7:59:50 AM

NickS stated: "If you can't rehabilitate someone within 21 years, you're either not doing it right or they have a chronic mental disorder."

And this OPINION is based upon what?

Posted by: TarlsQtr | May 2, 2012 9:59:15 AM

Which is why the European nations represented as judges at the Nuremberg trials (a military tribunal, BTW) imposed the death penalty on some of the Nazi defendants.

First, U.S. and Russia also were judges there and they influenced the events. Second, war criminals are not the same as civilian murderers. Finally, after that business was over, they set up rules where they would likely not even execute many war criminals as they did then.

And let me ask you straight up: Do you hold the absolutist view that the death penalty should never be imposed, ever, no matter what the facts of the murder(s)

You asked me this already and I already said that ideally, the death penalty would not exist. Similarly, torture, no. Even for mass murderers. But, we don't have an ideal system where only "the right ones" are executed, the right way.

The facts of this murder is thought by some as an easy call, but it is far from one, including the "giving him the martyrdom he wants" idea.

I'll also repeat that each person might have ideal policy goals but that doesn't mean discussing limited matters is specious since all they want is to reach that ideal. Such a mentality would be pretty destructive in court. Each side would not be taken seriously at all, since all they want is the big game, so their argument on any detail could not be taken seriously at all.

Posted by: Joe | May 2, 2012 12:40:01 PM

Bill -
As I understand it, the 21 year-sentence is a minimum, not a maximum. In any event, I'm not defending Norway's sentencing policy. My point was that the traditional deterrance and retributive arguments don't really work with extreme cases like Breivit.

Posted by: Ryan | May 2, 2012 1:16:11 PM

Ryan --

1. I believe the 21 years is indeed the maximum, not the minimum.

2. There is no such thing as a perfect deterrent. If there were, someone would have found it and we'd have no more crime. That is one reason deterrence, while important, is less important than just punishment.

3. Why do you think the traditional retributive arguments don't work with Breivik? Wouldn't you say he's earned a death sentence? He knew exactly what he was doing, planned it extensively, had a definite motive in mind, and carried through with it for over an hour's worth of murder, all of defenseless teenage kids. To give someone like that a sentence qualitatively identical to what you'd give an armed back robber would be mind-boggling.

Posted by: Bill Otis | May 2, 2012 2:40:43 PM

The op-ed itself says: "21 years in prison, or longer if the government meets certain conditions" ... I don't know what these "conditions" are, but suffice to say that there is a decent chance that they could be met as applied to this guy. In another blog, it was noted that the result would be administrative detention indefinitely.

The fact there is imperfect deterrent is noted. There is also imperfect "just punishment," since there is a maximum that is possible, particularly if don't include torture, corruption of blood etc. So, ranking reasons for punishment is a complex matter, even that "one reason" not clearly shown.

The limits to punishment underline how un-mindblogging similar punishments are. Thus, somehow, juries rarely give even heinous murderers the death penalty, resulting in long stints in prison. Long stints in prison also exist for three time offenders that don't involve loss of life. A bank robber and rapist, which are quite different crimes, can get similar sentences. etc.

If we want to say he "earned" the death penalty, I also am not sure why some people think we shouldn't care that he himself would rather it than life in prison. If "just deserts" is our concern, wouldn't it be a bit strange in the long run to give him what he wants?


Posted by: Joe | May 2, 2012 3:03:04 PM

Joe stated: "Second, war criminals are not the same as civilian murderers."

Wow. You definitely do not work for the Obama Administration.

Posted by: TarlsQtr | May 2, 2012 4:24:16 PM

Joe --

We shouldn't give a good God damn what the killer wants or doesn't want. It's what, within Constitutional limits, WE want -- what the electorate and the jury want -- that matters.

You think murder just isn't all that bad and, therefore, any weasel reason to beg off the punishment a heavy majority of your fellow citizens approve of can be trotted out as convincing.

And maybe you're right. So go convince the national electorate and the Supreme Court. Good luck!

Posted by: Bill Otis | May 2, 2012 5:27:17 PM

@Joe
"People from a nation more screwed up than Norway in various ways should also be a bit humble, perhaps."
This sentiment makes no sense, a bad idea is a bad idea regardless of who has it. Letting a mass murderer walk free is awful no matter who is doing it.

Posted by: MikeinCT | May 2, 2012 6:10:54 PM

Many family members of murder victims oppose the death penalty.

Family members of murder victims have been called by the defense to testify as mitigation witnesses during penalty phases.

Family members of murder victims attended the Conn. governor's recent signing ceremony.

Bloggers who favor the death penalty should try to support the death penalty on its own grisly terms, rather than seeking to falsely equate themselves and their position with that of the family members of murder victims.

Posted by: Calif. Capital Defense Counsel | May 2, 2012 8:11:28 PM

Check with Claudio. Europe has a lively death penalty practice, despite its false piety and hypocrisy.

I bet ten cents, in two years, Breivik is found hanging in his cell. It will be ruled a suicide. Inmate reports of screaming and scuffling will b dismissed and covered up.

Posted by: Supremacy Claus | May 3, 2012 8:18:28 AM

Wow. You definitely do not work for the Obama Administration.

They don't treat war criminals and civilians the same either. There are certain basic rules that apply to all, but no, they aren't treated the same in various ways.

We shouldn't give a good God damn what the killer wants or doesn't want.

If life imprisonment is harder for the person, why exactly shouldn't that be a factor when determining "just deserts," which includes judging what is particularly um punishing for the person? It's like a teacher punishing two students differently, since she knows one would care less about staying after school, while another hates doing that.

It's what, within Constitutional limits, WE want -- what the electorate and the jury want -- that matters.

Yes, we (I'm right here, no need to shout) want to punish the person, so letting him off easier since it's what he wants "matters" to us.

You think murder just isn't all that bad

It might be hard for you to understand, but in the states and nations where the DP doesn't exist, yes, people think murder is "all that bad."

and, therefore, any weasel reason to beg off the punishment a heavy majority of your fellow citizens approve of can be trotted out as convincing

The fellow citizens of my state approve it so much that it isn't in place. The citizens of Norway don't want it either. Not that "everyone thinks so" is a dominating moral rule. How did that work with racism?

And maybe you're right. So go convince the national electorate and the Supreme Court. Good luck!

A trivial number of murderers are given the death penalty and even they linger on death row for years if not decades because the people's representatives choose judges etc. who are quite wary about applying it. The Supreme Court, including justices appointed by Reagan and Bush furthered this. Your johnny one note position is the "minority view" here.

This sentiment makes no sense, a bad idea is a bad idea regardless of who has it. Letting a mass murderer walk free is awful no

He is not "walking free" anytime soon -- as noted, the time will be extended with special conditions present, and it is likely they would apply. The "bad idea" here is not LWOP anyways but the death penalty. Finally, the op-ed moralized on what is reasonable and on that front, conflicting morality would give us more reason to be humble than the op-ed supplied.

Posted by: Joe | May 3, 2012 11:09:38 AM

"trivial number of murderers"

To forestall confusion, the word "trivial" is somewhat misplaced since thousands of people are on death row. But, only a small sub-set of murders, even those death eligible, result in death sentences being carried out. The remainder include some pretty bad people. And, even this sub-set results in a further sub-set of actual executions. This is not a new thing. In 1920, only a small number of murderers overall were executed. Back in England, when stealing bread or sodomy could be capital, the same applied.

A final word on the "any extreme absolutist positions" point. A position that reflects the law in so many places is a curious use of the term "extreme." Certain things are banned. Torture, for instance. Sex with small children. Sibling incest. Are these too "extreme" positions, I wonder. The last two disgust people just thinking about them. Unfortunately, torture does not, though as Shep Smith once said, it should. The DP isn't there yet but many places do ban it, including because if it exists, it won't exist only for this guy. Rules often aren't set for easy cases anyway.

Posted by: Joe | May 3, 2012 11:23:53 AM

Suppie!

"1 lb. beefsteak, with
1 pt. bitter beer
every 6 hours.
1 ten-mile walk every morning.
1 bed at 11 sharp every night.
And don't stuff up your head with things you don't understand."

Posted by: claudio giusti | May 3, 2012 4:00:54 PM

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