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December 8, 2005

Pondering Tookie's fate, Schwarzenegger's dilemma and punishment theory

Thanks to this post at TalkLeft, I saw this effective article from Newsweek discussing California Governor Arnold Schwarzenegger's "difficult political and humanitarian choices in the battle over clemency for convicted killer Tookie Williams."  (As detailed in this AP story, Schwarzenegger met with defense lawyers and prosecutors today, and "Schwarzenegger's aides have said the governor could make his decision over the weekend or wait as late as Monday.")

As I have thought about the case and read a broad range of commentaries (many of which are linked below), I am struck by the fact that it is not clear how either of the traditional theories of punishment cut when it comes to the clemency decision facing Schwarzenegger.  To put the debate in the most simplified terms, one could readily say that, from a retributivist perspective, Williams' crime was blameworthy enough to merit the death penalty and thus his execution should not be stopped.  However, one could also say that, by virtue of his work over the last two decades, he is no longer one of the "worst of the worst" and thus no longer deserves to die.  Similarly, if one were to adopt a utilitarian perspective, one could reasonably claim that better consequences would flow from carrying out his death sentence or that better consequences would flow from a grant of clemency.

Of course, as is true in all of the most interesting criminal justice debates, many arguments made on both sides of the case involve a mix of traditional retributivist and utilitarian arguments, along with some other theoretical ideas (like educative and expressive concerns).  In addition to adding to the drama in the build up to Schwarzenegger's decision, these theoretical realities also have me very interested to see how Schwarzenegger frames and defends whatever decision he makes.

UPDATE:  Shavar Jeffries over at blackprof.com now has this interesting post entitled "Clemency for Tookie and Utilitarianism."  In addition, TalkLeft has more Tookie coverage here and indicates we might get a decision from Gov. Schwarzenegger by late Friday.  And here is another good press piece on the clemency issue presented to the Governor.

ANOTHER UPDATE:  Dan Markel now has this Findlaw guest column today about clemency, Tookie Williams, and the death penalty.  My sense is that Dan's arguments reflect a number of interesting (and contestable) claims based in retributivism.

December 8, 2005 at 10:52 PM | Permalink


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The clemency petition looks unnecessarily weak and incomplete, IMHO.

I would have liked to have seen more about the places he lived and how he grew up in Compton or where have you.

Who were his parents, uncles, aunts, grandparents? Any sibs? Any health/abuse/neglect issues as a child? Come from a broken home? Used drugs? Any psych testing done? Any PTSD diagnosis? How did he come to have the two encounters that led to 4 homicide convicitions?

Maybe that sort of stuff got covered in other records shown to the Gov.

He comes across as a bit arrogant and self-aggrandizing.

He seems to have a high IQ, and good writing and speaking ability.

He is not signing up for LWOP. The lawyers are not making the point that clemency here means "rot in jail until you die," not "go free."

Not much is done with the race issue. I would have liked to have seen someone talking about how a black kid growing up in Compton has a greater chance of going to prison than to college. This does not excuse, but might mitigate or extenuate in favor of LWOP as opposed to death.

I suspect the too narrow focus, if that is all there is, was called for by SW. If so, his arguable narcissism may cost him.

Posted by: cfw | Dec 9, 2005 7:35:46 PM

SAVE TOOKI WILLIAMS, give him a second life, his sentence has already taken his first

Posted by: Bryce Thompson | Dec 12, 2005 3:54:48 AM

Engineer here. My question is how come the victim's lives are not brought up when discussing clemency? What about their stay of execution? Or were they given a choice of getting a second chance?

Posted by: jtf | Dec 13, 2005 6:37:47 PM

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Posted by: | Oct 14, 2008 9:51:03 PM

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