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December 10, 2005

Might Sunstein and Vermeule say clemency for Tookie Williams is now morally required?

There are now many serious news reports that authorities in Los Angeles are concerned about possible rioting if Stanley "Tookie" Williams is executed as planned.  One story notes: "Fearing a repeat of the 1992 race riots in which 52 people died, police, schools and community groups have been told to prepare for violence if clemency is not granted."  Notably, as noted here, President Bush has said he strongly supports the death penalty because he believes "ultimately it helps save innocent lives."  However, it is perhaps now reasonable to fear that executing Tookie Williams could spark riots that might cost innocent lives.

These rioting concerns lead me to wonder whether Professors Cass Sunstein and Adrian Vermeule might now believe that California Governor Arnold Schwarzenegger is morally required to grant clemency in order to save the lives that could be lost in riots if he fails to grant clemency.  Sunstein and Vermeule have recently argued against act-omission distinctions when judging governmental action in a provocative article entitled "Is Capital Punishment Morally Required? The Relevance of Life-Life Tradeoffs" (which I first noted here and critiqued here).  The logic of their consequentialist claims would seem to suggest that Gov. Schwarzenegger is morally obligated to grant Tookie Williams clemency if the Governor has good reason to believe that innocent lives will be lost from his failure to intercede.

A classic chestnut in debates over utilitarianism asks whether a sheriff should allow the execution of a defendant he believes to be innocent in order to placate a mob that will otherwise kill many more persons.  In the Tookie Williams case, it would appear Gov. Schwarzenegger could be facing the converse dilemma: should he prevent the execution of a defendant he believes to be guilty in order to placate a mob that could end up killing many more persons?

December 10, 2005 at 08:36 PM | Permalink


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Arnold's capitulation for these reasons [threatened riots] would be like negotiating with terrorists. It shouldn't even enter his mind.

Posted by: RS | Dec 11, 2005 11:17:58 AM

Arnold should not justify his clemency decision in terms of a fear of riots, but do you really believe that this fear "shouldn't even enter his mind"? What if he is genuinely torn "on the merits," and he also has credible evidence that many lives could be at risk from riots if he fails to grant clemency. Are you saying that the risk of riots should not even serve as a tie-breaker?

Of course, good consequentialist counter-arguments can be made against granting clemency in this case and others. But my main point is that Sunstein and Vermeule argue that life-life trade-offs are critical for assessing moral requirements in the arena of the death penalty, and in the Williams case the life-life trade-off could arguably now cut against an execution.

Posted by: Doug B. | Dec 11, 2005 11:39:35 AM

Wouldn't one consequence of clemency for the sake of avoiding a riot be that any time a person was to be lawfully executed, a few of his friends and family could gather a mob and threaten to react violently, and this would then need to be taken into consideration by the governor?

It would also appear unjust to spare a criminal defendant because of his post-conviction popular appeal and reputation(even if deserved, as in this case), while having no such compunctions over executing someone who is not well known and whose death will not provoke a riot.

Posted by: ib | Dec 11, 2005 1:51:26 PM

You wrote: "Are you saying that the risk of riots should not even serve as a tie-breaker?"

My answer: Yes.
It also amazes me that celebrities in addition to academics talk at great length about the "fact that he was convicted with circumstantial evidence..." and so on, therefore he shouldn't be executed. Every case I have prosecuted (yup, I'm one of those evil federal prosecutors) has been proven with, sometimes exclusively, circumstantial evidence. Oh well...you have an interesting site even though I disagree with about 90% of what you preach. I actually love the Booker decision, b/c now I see judges imposing sentences under 3553(a) that are usually very fair...and sometimes well in excess of what the advisory guidelines called for. It has turned some judges into absolute hammers, while obviously allowing for leniency where appropriate. We are in an interesting era.

Posted by: RS | Dec 11, 2005 5:01:18 PM

I would like to offer my own insight and opinion into the Tookie Williams clemency debate,which is currently attracting much interest in the media around the world.

Over the years in my work as a Special Educational Needs school teacher working with children with learning difficulties,including those with emotional and behavioural difficulties I have become deeply aware of the impact of the environment on teenagers socially challenging behaviour.

Many of the young people I have worked with during the course of a twenty year career come from the most appalling inner city backgrounds,where low income families,single parents,poverty,rejection by a parent or parents,racism, both overt and covert and crime are part and parcel of everyday life.

Of course just because you're from such a background doesn't necessarily mean that you have to become involved in crime and violence.

Many young people from such backgrounds miraculously manage to make something of their lives by overcoming all their adversity through sheer hard work,determination and will power.

Many others however,residing within some inner city areas,particularly young black men who notably lack positive male role models in their lives,often succumb to almost overwhelming grinding poverty,feelings of rejection from a parent or parents,combined with a dehumanising insidious racist rejection by society in general,which includes members of the teaching profession,police forces,employers and members of the community in general and inundated with negative male role models within their communities and enourmous 'peer pressure'from their 'friends' develop into young men who often harbour a deep sense of bitterness,frustration despair,anger,fear,lack of direction,hopelessness and feelings of revenge,often misdirected towards members of society in general.

Tookie Williams was obviously such an angry directionless young man as a youth when he became the founding member of 'The Cripps'gang some 25 years ago.

The crime and violence which he became involved in leading to the alleged four murders for which he was fond guilty was to state frankly absolutely abhorrent and quite rightly deserves a severe sentence, which after being incacerated for over 25 years he has arguably already paid a high price for by wasting the greater part of his life in prison.

However as good law abiding citizens within society are we to merely execute people and lock them up for life and thus decree that there is 'no hope' for the sinner or do we try to 'rehabilitate' them in order to transform them into more productive members of society.

Surely any members of a civilized society would be interested in rehabilitaing former criminals and whilst many criminals choose to continue in a life of crime and violence there are individuals who have managed to become productive law abiding members of society who have managed to 'transform' their lives and become the opposite of what they represented in their youth as an adult.

A combination of factors are usually instrumental in such a transformation and usually include a growing maturity,a time to reflect on past wrongs,and a growing desire to make up for all the wrong done, as far as is humanly posible, a developing sense of one's own individual skills and value as a person and finally very often some sort of spiritual awakening.

Tookie Williams is evidently a 'rehabilitated' person who has been engaged in tremendous good work with young people for many years and he is a person who has quite literally transformed and is now a contributing member of society,rather tahn one of society's problems.

As a school teacher working with many dispossessed young people I am aware of the 'street credability' that somebody coming from a background like Tookie's has with many inner city youngsters and can only applaud the work he has been doing with young people over the years.

Executing Tookie Williams would basically inform young people in the ghettos that if you turn to crime then there is no redemption and possibility to 'change' as a person in later life.

Keeping him alive would only serve to encourage hundreds if not thousands of currently dispossed youth that there is a light at the end of the tunnel, that you dont have to succumb to your circumstances but can become somebody with a sense of value,dignity and with a positive contribution to make in society.

Society too has to contribute and work towards maintaing a just and equitable society for all citizens irrespective of race,colour,class gender and disability and not only pay 'lip service'to equal opportunities but apply 'teeth'in the form of incentives for firms who adopt equal opportunity policies as well as implementing and maintaining existing policies of 'affirmative action'

As Thomas Hobbs the philosopher once famously wrote in 'The Leviathan' 'In the absence of the sword' (meaning certain laws within a democratic society)'life would be short, sharp and brutish with men pitted agaist each other in egotistical self pursuit'.

In the absence of laws which maintain a sense of order and control human nature as Hobbs quite rightly noted along with Alexis De Toqville and Jean Jaques Rosseu would soon succumb to the negative basic instinct which is to do the wrong thing,thus leading to 'chaos'.

Whilst those early philosophers sought to prevent people from perpetrating crime and injury towards their fellow neighbour,protection from discrimination on the grounds of race,class,gender,age and disability also require 'government intervention'

Let's hope and pray that 'The Terminator' will make the right decision and grant Tookie Williams clemency,thereby sending a strong message of hope,redemption,reconcilliation and encouragement to thousands of inner city youths who currently have no faith in either 'society' or their own life's direction.

Posted by: derek waddell | Dec 11, 2005 6:43:10 PM

Even the mere suggestion that the threat of rioting should affect the decision is morally and intellectually bankrupt.

Perhaps if the jurors in the Rodney King case knew that their verdict would spark a riot they would have voted to convict. (Would have saved lives and millions in property damage and avoided the need for a federal civil rights prosecution.)

Posted by: Steve | Dec 12, 2005 11:15:14 AM

I think I understand Mr. Berman to be trying to demonstrate by a reductio ad absurdum that Sunstein's "deterrence" arguments in the cited article are untenable.

Nice try, but their point is that if we know that cap. punishment will deter, even at the margins, some murders, we (society) have an obligation to implement the death penalty, lest we choose the killing of the innocent (who would otherwise not die because of the deterrent effect of the DP) over the death of the guilty (tried and sentenced killers).

This theory of course has nothing to do with scattershot predictions of civil disturbance such as Mr. Berman posits in this post. Unfortunately, Berman, who used to project a more balanced and less obviously biased approach, has come out full guns blazing against the death penalty. It's sad that so much of the so-called academic elite have staked out positions in the culture wars directly contrary to the expressed will of the majority of the citizens in this country.

Posted by: Tom McKenna | Dec 13, 2005 9:05:40 AM

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