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February 28, 2010

Mike Farrell makes standard modern (pro-LWOP) arguments for DP abolition

Over at the Huffington Post, long-time abolitionist (and former MASH star) Mike Farrell articulates some of the now-standard modern arguments for abolishing the death penalty in this new piece headlined "The Death Penalty is Dying."  Here are some excerpts:

It's frustrating to [death penalty] advocates that the facts support abolition.  Faced with a reality unfriendly to their position, many revert to anger or fear and fall back on a desire for revenge rather than justice.  I cringe when I hear otherwise rational people say it's okay to execute an innocent person now and then if it's the price we pay for keeping the death penalty....

This is a shame because once they understand it, it's my experience that fair-minded people, even those who believe it's morally acceptable for the state to kill the perpetrator of a violent crime, are repelled by the reality of the system.  The racism that permeates the process, for example, is shameful, but too many turn their eyes away, not wanting to know what the lop-sided numbers expose about the continuing effect of racial bias in our society. The same is true for what some describe as "classism," the fact that mostly the poor end up on death row. As the condemned put it, "Them that has the capital don't get the punishment." Think O.J....

It makes me sad, in a way, that what's rapidly bringing us to the tipping point on the question is how much killing costs.  I'd much rather we recognized the harm this barbaric practice is doing and quit killing helpless, encaged people because we diminish ourselves by stooping to the level of the least among us at his or her worst moment.  But if the reluctant awakening on the part of near-bankrupt states to the hundreds of millions of dollars they're wasting on an inefficient, unnecessary and redundant killing system is what moves us to finally do what most of the rest of the nations in the world have long since done, it's hard to complain.

And yes, counterintuitive as it may appear, it costs far, far less of our tax dollars to put a killer in prison for life without the possibility of parole and keep him there than it does to go through the Constitutionally-mandated steps necessary to try, convict and execute the presumed perpetrator. (I say presumed because of the discovery of people who have been executed only to later be found to have been innocent.)

It's all so terribly, sadly wrong, so incredibly destructive. So I continue the discussions and do the debates, listen to the harangues and try to calm the fears in the hope that it will, in some small way, speed the day of abolition. And in so doing I will contend with those who want you to believe the perpetrators of violent crime are "animals," or "monsters," rather than sick, immiserated human beings no different, in essence, than the rest of us.

When I mention the 139 men and women who have been exonerated, freed from death row, and talk about the danger of executing the innocent, the refrain I often hear is, "Oh, they all say they're innocent!"

They don't, you know.  Most of those I've spoken to on death row recognize their guilt and take responsibility for it.  Most have changed dramatically in the years they've spent behind bars thinking about the horrible act that put them there.  Most are capable of becoming productive citizens if given the chance.  But in a society led by politicians who believe showing mercy and recognizing the capacity for change makes you "soft on crime" and thus vulnerable, there's little chance that will happen.  And that's a crime.

I have lots of respect for the passion and commitment of abolitionists like Mike Farrell, but I dislike when these folks suggest that one must be irrational to support the death penalty and contend that the " facts support abolition."  Consider the very fact of innocence emphasized in this commentary: Farrell suggests that the danger of executing the innocent is a reason to do away with the death penalty, but then rightly notes that most persons on death row are guilty.  As all recognize in the context of imprisonment, we can/should do everything possible to eliminate wrongful convictions without having to give up on a particular severe punishment.  (I never hear Farrell or other abolitionists say we should do away with LWOP because some "sick, immiserated" presumed perpetrators are wrongfully "encaged.")

Similarly, Farrell pushes for LWOP as an alternative to the death penalty, but then contends most murderers sent to death row "are capable of becoming productive citizens if given the chance."  Does the LWOP alternative so vigorously advocated by most abolitionists really give convicted murderers a chance of "becoming productive citizens"?  Ironically, many persons sent to death row (and some ultimately executed) such as Karla Faye Tucker and Stanley (Tookie) WIlliams and Mumia Amu-Jamal have, by virtue of the celebrity that attends being sentenced to death, have ended up becoming a lot more "productive" than most murderers condemned to spend their lives locked in a cage under an LWOP sentence.

Finally, one need not be a student of Immanuel Kant to rationally believe that locking killers in a cage and throwing away the key via LWOP treats them more like "animals" than does respecting their moral autonomy by condemning them to die for intentionally killing other humans.  In this context, consider this First Things blog post, which is titled "Killer Whale Tragedy Illustrates Moral Difference Between Humans and Animals."   By describing convicted intentional murderers as "helpless, encaged" and "sick, immiserated" creatures, Farrell seems more inclined to treat intentional killers as animals than do those who advocate the death penalty for the worst of all human intentional murderers.

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Dissent gets zero tolerance on that blog. They will not post any comment even asking questions of the blogger. That is because the facts abandoned the left 100 years ago.

Only incapacitation justifies the death penalty. Farrell needs to come here to hear the problems with LWOP.

1) License to kill. All crime after the first murder have absolute immunity. The license is far superior to that of James Bond, always second guessed by politicians.

2) Dose-Response Curve. You cannot obstruct a treatment then claim it does not work.

3) Transportation. It kill three orders of magnitude more innocent people than the death penalty. By the abolitionist logic, all transportation should stop, including being a pedestrian which kills 2 orders of magnitude more innocents than the death penalty.

4) Illegality of deterrence. One may not punish a defendant for the speculative future crimes of unknown parties. That violates procedural due process rights to notice and to a fair hearing.

5) Punishment is a waste of time and expense. These folks have shown themselves to be incapable of learning from their beatings, their arrests, their accidents. Furthermore, punishment may come from the Bible, and violate the Establishment Clause.

6) Cruelty of LWOP and of the average death. Let prisoners choose to accurately assess which remedy is crueler. Most innocent people (90%) will have a rough, prolonged, agonizing, humiliating filled with painful but pointless medical procedures. The latter are caused by the threats of lawyers to sue the doctor who refuses to do them. Thank the lawyer for the painful death without dignity that awaits most of us. Why is the murderer entitled to get a perfectly painless version? Thank the rent seeking lawyer, again.

Posted by: Supremacy Claus | Feb 28, 2010 11:41:20 AM

Prof Berman,

Your pro-DP defense is an even more boring and standard fare than Farrell's anti-dialog. It's too easy to just spin out automatic opposite angles of arguments - which is all you ever do. Your lazy logic is very, very tedious.

Could you please come up with some new, more inspired reasons for killing? We all want the executions to take place with an uplifted feeling about what we're doing.

Posted by: Samuel | Feb 28, 2010 4:55:29 PM

17,000 extra-judicial executions a year, with the foreseeability of planetary orbits. You do not find that a little tedious? On top, black folks carry a burden of 5000 excess murders a year. It took the lawyer organization, the KKK, a hundred years to lynch 5000 black folks. Today's lawyer hierarchy does that each year. If you think the families of murder victims get used to anything, you are quite mistaken. Their pain is the same as yours would be. I would like to see the lawyer hierarchy get rounded up, given an hour's trial and executed. Then the lawyer immunized and protected criminals can be reached. Any number below 17,000 is a break even number.

Posted by: Supremacy Claus | Feb 28, 2010 6:35:32 PM

What is "boring and standard," Samuel, about asserting that holding murderers morally accountable may respect humanity more than LWOP? What is "boring and standard," Samuel, about asserting that concerns about innocence may be a stronger argument against LWOP than against the death penalty? What is "boring and standard," Samuel, about asserting those sentenced to death tend to be more "productive" than those sentenced to LWOP?

I share a concern that many DP proponents fail to engage abolitionists and instead repeat "boring and standard claims" about deterrence and desert. But that's part of the point of my post -- to contend that some assertions MADE BY ABOLITIONISTS might readily be used to support the death penalty (and/or to attack forcefully the LWOP sentences that abolitionists usually advocate as an alternative to death).

As for a "new, more inspired reasons for killing," I still think the best argument is a commitment to democracy and a belief that the "right to life" can be legitimately balanced by voters with other American values. A majority of voters in many states seem to support killing of some intentional murderers (just as they also seem to support abortion and other contested policy issues), and thus I am inclined to defer to their views unless and until some divine wisdom gives me some transcendent moral wisdom on this tough moral issue.

What's especially notable is the failure of abolitionists to get much political traction over time with their anti-DP arguments. Perhaps that's because they too often fail to really engage with those who support or are agnostic as to the DP, rather than seek to lecture to them. I think there are many strong arguments against the death penalty, but Farrell is not making them especially effectively here.

Posted by: Doug B. | Feb 28, 2010 6:52:47 PM

Why is capital punishment such a difficult moral choice? You kill someone, and you pay with your own life. Seems pretty simple to me. I would think that the decision about "statistical lives" in questions of how safe we should make things is a far more weighty choice, and engineers and bureaucrats make those decisions.

Posted by: federalist | Feb 28, 2010 7:35:07 PM

I'm not sure who is doing the lecturing, Professor.

As to deferring to "popular wisdom" about killing "unless and until some divine wisdom gives me some transcendent moral wisdom on this tough moral issue," I would agree that, yes, you are certainly lacking that.

However, anyone who states their "commitment to democracy" means simply applying majority opinion to tough moral issues is quite ignorant of much history of American political philosophy - including, in addition to Kant, Locke as applied by Madison and many others. The present American political framework was designed - but unfortunately still sometimes fails - to prevent abuses that can result from simplistic application of majority rule to complex issues. And you should know that even with your lack of any moral insight.

Posted by: Samuel | Feb 28, 2010 7:55:21 PM

Mr. Farrell rails against classism and the death penalty. But, seriously, how many rich people actually commit capital murders in the first place? Not many I'd imagine.

And then there's the tired old argument that capital punishment is racist. Well, simply put, once blacks stop committing 47% of murders in the US despite making up only 13% of the population, they'll stop disproportionately getting sentenced to death (see http://www.cbsnews.com/stories/2007/08/09/national/main3153497.shtml).

Mr. Farrell also writes the following: "I say presumed [perpetrator] because of the discovery of people who have been executed only to later be found to have been innocent". Really? Which executed convicts have later been found to have been innocent?

I have no problem with abolitionists who think that executing people is too harsh a punishment for any crime no matter how heinous. I just wish so many wouldn't trot out specious arguments that play fast and loose with the truth and ignore reality.

Posted by: Alpino | Feb 28, 2010 8:07:24 PM

Hey Doug, I'm an abolitionist who shares your view that LWOP is often an excessive punishment. In my view it's excessive for almost all who currently serve such sentences.

I think many of the arguments against the death penalty lead towards an interrogation of LWOP. For example, both punishments deny that human beings have an remarkable capacity for transformation. Not all humans are able to realize that capacity, but it happens in the most unlikely places. Both the death penalty and LWOP deny that basic human truth and in doing so they belittle all beings.

Further, like with death penalty, when it comes to LWOP, the costs far exceed the benefits. We shouldn't sentence so many people to LWOP for the same reason we don't have fire stations on every block – though it would surely make the world safer, the costs simply don't justify such measures.

I appreciate your consistent voice against LWOP. I hope it leads others to speak out as well. I do wish you expressed it more often in contexts that weren't in specific contrast to death penalty abolition. Most abolitionists I know are not huge LWOP fans. They don't favor a vast increase in the use of LWOP. Rather they favor the use of LWOP in those cases where the death penalty is currently the prescribed punishment. At least with LWOP there's more time for prisoners to make the case for a pardon or to prove one's innocence or otherwise get legal relief.

I look forward to the day when the death penalty is eliminated and we can begin to make the case to Americans that LWOP is an excessive punishment. I realize that you believe that LWOP is a less justifiable punishment than the death penalty, but I fear that so long as the death penalty exists, that's going to be a tough sell for most people. As such I think you might consider abolition a first step towards something you believe in rather than a distraction from it.

Posted by: dm | Feb 28, 2010 8:30:14 PM

Professor Berman,

I am a student who just recently stumbled upon your blog.
I would like to state, first and foremost, that I agree with you in your dislike of the suggestion that one must be irrational to support the death penalty. Personally, I do not support the death penalty, but I also believe that those who do must have considered their arguments and their perspective as carefully as I have attempted to consider my own. As far as the issue of innocence goes, I do question whether your statement "As all recognize..." is completely fair. It seems to suggest that anyone who does not recognize the phrase that follows as true is irrational, a point that seems as unfair as the portrayal of all death penalty advocates as irrational. Further, I would like to point to the possibilities that life entails as a response to some statements made both in your blog and in some responses to your blog. By nature, life contains possibilities, the capacity for change and transformation. This is why life is complex. Because LWOP, despite any flaws, still sustains life, it still sustains the capacity for change. This is what makes it a more productive option, despite any celebrity productivity that may ironically arise for death row inmates. Also, because life is complex, this is not a simple issue. I concur with Supremacy Claus that many abolitionists tend to lecture rather than really engage the issues and I would agree that this would be something that would be nice to see changed. In view of respecting moral autonomy, it seems that the capacity for moral autonomy is contained in living human beings, not dead ones. The most moral autonomy, I believe, would be offered by respecting the dignity and sanctity of human life.

Posted by: Emily | Feb 28, 2010 8:37:58 PM

This blog is a pretty good example of why popularity does not necessarily go hand-in-hand with wisdom.

Posted by: Anon | Feb 28, 2010 9:06:41 PM

Hey Doug, one more small thing: I think you may be confusing who your friends are and who your adversaries are in the political debate. Abolitionists may, in your view, be misguided in their priorities and emphases, but if the death penalty were ever eliminated, it is from the ranks of abolitionists that the anti-LWOP movement would emerge. Similarly, the loud, angry foes at the center of an anti-LWOP movement would be the same people who so bitterly oppose death penalty repeal – the (so-called) victim's rights people, the hysterical politicians who exploit popular fear, the (so-called) Christian conservatives, etc.

Take a look at who brought the juvenile LWOP cases to the Supreme Court: Bryan Stevenson, a prominent abolitionist. And take a look at when that case became interesting to the Supreme Court and viable there: After Roper v. Simmons eliminated the death penalty for juveniles. Reading your blog one might get a very different idea.

Posted by: dm | Feb 28, 2010 9:12:03 PM

Not one mention by the criminal lovers here, not a single one. 17,000 extra-judicial executions each year after year, as sure as the orbits of the planets. Why? None generates a lawyer fee.

Posted by: Supremacy Claus | Feb 28, 2010 9:47:17 PM

Emily: Student of ...? If it is of the law, I would like to discuss your indoctrination into really stupid, supernatural doctrines unlawfully taken from a church in the 13th Century, by the criminal cult enterprise, seeking to destroy your ability to think for yourself.

Posted by: Supremacy Claus | Mar 1, 2010 6:21:39 AM

All fair points made by many commentors in response to my expression of my usual frustration with the usual abolitionist buzz. But, as is my basic goal with this blog, I wish to encourage all involved to take the time to reflect on the moral, political, legal and practical certainty with which they hold/express their views. It is, fundamentally, my own lack of certainty on an array of modern American death penalty issues that makes me persistently concerned about what seem to me to be too-forceful DP claims so often heard from both sides of the aisle.

That said, I do feel certain that far too much of modern moral, political, legal and practical energy has been poured into this DP debate over the last three decades given it has very little practical consequence for 99.9% of all Americans. And during this period, the US has persisted in having historically high crime rates and historically high incarceration rates and thus, in my view, historically high levels of injustice for all Americans. That is the main (utilitarian) concern I keep pushing when I recoil from DP derangement syndrome, and it is one that I will continue to worry about unless and until the Mike Farrells of the world show that they have a commitment to human rights and interests beyond just the right to life for those who have intentionally extinguished this right for others.

Posted by: Doug B. | Mar 1, 2010 12:58:30 PM

Mike Farrell is a real blow hard with tired arguments about sick criminals. First, there are people who are just murderers, simply put. These people have been amongst since time immemorial and there is no way that he can plead otherwise. Second, I do believe that anyone on death row should be able to have every tidbit of DNA properly and carefully analyzed FROM DAY ONE.
Third, the abolitionists all remark about the cost of the death penalty, yet, they are the ones who have jammed up the costs and the system with the endless, and in many cases, nonsensical delaying tactics. Its almost like someone coming into my house, putting something in my sink to stop it up and then complaining that I didn't have a big enough sewer line. Finally,
you never see him or Sister Prejean (another fine piece of work) ever do anything for the victims of crime. They never stand up and do anything to help these people at all. The talk about changed people is frankly offensive and sickening.

I am a student.

Posted by: Randy | Mar 1, 2010 6:20:49 PM

What about the families-of-murder-victims organizations that oppose the DP? Several of them exist. Are they just fuzzy-headed misguided blowhards, too?

Interestingly some in these groups identify with family members of condemned killers and dread their anguish and suffering.

C'mon, professor. Send not to ask for whom the DP has practical consequences. Aren't the other 99.9 percent of Americans involved in mankind? Doesn't any man's death diminish them, too?

Posted by: John K | Mar 2, 2010 1:38:31 AM

"Doesn't any man's death diminish them, too?"

Many men's deaths markedly enhances millions of people's lives. When a criminal takes over a government, it is a huge man-mad catastrophe. Killing such people can save $billions and millions of lives.

Posted by: Supremacy Claus | Mar 2, 2010 4:49:57 AM

Totally agree on it.

Posted by: obgyn mesa az | Jan 24, 2011 9:43:51 AM

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