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September 26, 2011

Lamenting (yet again) extreme death penalty criticism and insufficient LWOP concerns

Gr-death-penalty-approve-462_custom This post returns me to my long-running concerns with abolitionist fervor reflected in yet another bout of media hand-wringing following yet another controversial execution.  This time round, of course, the Davis case is generating all the passion, and the most prominent recent example of MSM wailing is this new New York Times editorial headlined "An Indefensible Punishment."  Here are excerpts from the piece:

Sentencing people to death without taking account of aggravating and mitigating circumstances leads to arbitrary results.  Yet ... so does considering such circumstances because it requires jurors to weigh competing factors and makes sentencing vulnerable to their biases.

Those biases are driven by race, class and politics, which influence all aspects of American life.  As a result, they have made discrimination and arbitrariness the hallmarks of the death penalty in this country....

The problems go on: Many defendants in capital cases are too poor to afford legal counsel. Many of the lawyers assigned to represent them are poorly equipped for the job....

Politics also permeates the death penalty, adding to chances of arbitrary administration. Most prosecutors in jurisdictions with the penalty are elected and control the decision to seek the punishment.  Within the same state, differing politics from county to county have led to huge disparities in use of the penalty, when the crime rates and demographics were similar.  This has been true in Pennsylvania, Georgia, Texas and many other states....

All but a few developed nations have abolished the death penalty.  It is time Americans acknowledged that the death penalty cannot be made to comply with the Constitution and is in every way indefensible.

All of the problems highlighted by the NY Timesin this editorial apply at least as forcefully to the punishment of life without parole (LWOP) as to the punishment of death in the United States.   Moreover, while the death penalty is mentioned in the Constitution and has long been part of America's sentencing history, LWOP finds no support in either the Constitution's text or history (or really in any other "developed nations" for that matter).  Most important, as the chart above shows, strong public support for capital punishment readily supplies the key "defense" for the death penalty in America: our constitutional commitment to democracy — to "government of the people, by the people, for the people" — means that popular support for this ultimate punishment can (and will) keep it on the books.

Further, America's sentencing laws each year subjects only a few dozen aggravated murderers in a few states to the real prospect of a death sentence and execution.  And those aggravated murderers typically will face death as a punishment only if and when the victim's family, and a set of prosecutors, and a set of jurors, and a set of judges all independently decide that death is a fair and fitting punishment.  Asserting that "discrimination and arbitrariness [and] the hallmarks of the death penalty" fails to acknowledge that (1) only a small number of aggravated murderers are even eligible for a death sentence, and (2) lots of victims and prosecutors and juries spare most aggravated murderers from actually receiving a death sentence, and (3) lots of judges and executive officials spare the most of those sentenced to death from actually getting executed.

Meanwhile, America's sentencing laws each year subject thousands of lesser offenders to LWOP or functional LWOP sentences (six years ago the US lifer count was over 130,000, but that included folks serving life with parole).  And often it merely takes one charging decision by a lone prosecutor or one sentencing decision by a lone trial judge to forever extinguish the chance for many lesser offenders to ever have even a chance to regain their liberty before dying in prison.  Further, there are strong reasons to fear that wrongful convictions, racial and economic and geographic biases, and ineffective lawyering are far bigger problems for the huge numbers facing LWOP than for the relatively tiny number facing death sentences.  Moreover, while SCOTUS rulings have ensured that no juvenile or mentally retarded aggravated murderers are on death row, there are still thousands of juvenile offenders and probably even more mentally retarded offenders serving LWOP sentences throughout the United States (some of whom likely are wrongfully convicted and most of whom likely suffered from racial, economic and geographic biases and ineffective lawyering).  

The Supreme Court's important Graham ruling last year reveals that a majority of Supreme Court Justices are starting to appreciate that LWOP sentences are sometimes used for lesser crimes and for lesser offenders in a manner that really "cannot be made to comply with the Constitution and [are] in every way indefensible."  Moreover, I am always pleased to learn about savvy sentencing reformer working in Texas and elsewhere who appreciate that a lot of good can be done seeking to convince the public and legislators that lesser offenders at least get a chance in their old age to seek a last gasp of liberty.  

But it seems that hard-core abolitionists (like the editors at the New York Times) — whose cause I respect, but whose tactics, fervor and extreme rhetoric always trouble me — are still slow to appreciate the potential value and critical importance of greater concern for the greater number of greater LWOP injustices than for what they alone perceive to be the death penalty's unique (and uniquely democratic) immorality.  So I expect there will be more posts here (yet again) complaining about how much advocacy energy and extreme rhetoric is expended simply trying to help get a few dozen aggravated murderers moved from the death row parts to the LWOP parts of our massive modern prisons.  (A final irony here: most state death rows are safer, have better facilities, and are less crowded than most other part of modern state prisons.)

A few recent posts on the Davis case and older posts on capital obssesions:

September 26, 2011 at 04:50 PM | Permalink


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An entry like this is why you gotta love Doug Berman. I agree with some of it and disagree with some of it, but that's not the point. It's balanced, moderate in tone, thoughtful, informed, original and non-partisan (in all its senses).

Thank you Doug Berman.

Posted by: Bill Otis | Sep 26, 2011 8:25:29 PM

An entry like this is why you gotta love Doug Berman. I agree with some of it and disagree with some of it, but that's not the point. It's balanced, moderate in tone, thoughtful, informed, original and non-partisan (in all its senses).

Unlike Bill who will not respond to posts which are critical but trying to improve the current US Justice? System

Posted by: albeed | Sep 26, 2011 10:19:00 PM

albeed --

"Unlike Bill who will not respond to posts which are critical but trying to improve the current US Justice? System"

What a joke. I have responded to hundreds of posts critical of the US justice system, as the entire board knows. The reason I don't respond to most of yours is partly that you are needlessly rude, but mostly that you are so often incoherent.

Posted by: Bill Otis | Sep 26, 2011 11:18:01 PM

Doug - I fear you misrepresent the NY Times. You have yourself referred to articles published in that newspaper critical of LWOP over the years. I haven't checked your posts to see if you missed the one reported and commented upon by Jonathan Simon on the Berkley Blog here: "The paradoxical status of ‘life without parole’ "
http://blogs.berkeley.edu/2011/09/15/the-paradoxical-status-of-life-without-parole/ (click on my name)
As Jonanthan suggests, in any society there will be a pyramid of punishments. Whilst the death penalty is retained, even for a "few" as you would have it, the opportunity to obsessively exploit use of LWOP will remain ... horrific, unfair and unnecessary as it is. Until you and US society are prepared to see the height of the punishment pyramid reduced, there is little prospect I fear, of achieving the goal you seek. Reference to "media hand-wringing" over an obscene execution will not help achieve it either.

Posted by: peter | Sep 27, 2011 1:35:21 AM

In the US, peter, there is little evidence that the "punishment pyramid" works this way. In many non-DP states like Michigan, there is MORE use of LWOP in part because of the absence of the DP there. Relatedly, NJ expanded LWOP when it got rid of the DP a few years ago. Meanwhile, Texas has eliminated LWOP for juve killers in part, I suspect, because it has the DP for adult killers.

I fully agree that criticism of LWOP and the DP is NOT a zero sum game, and that is one reason I do respect the commitments of DP abolitionists. And I know the NYTimes has been critical of LWOP, too. My main point here is to assail the NYTimes for not recognizing that public support for the DP remains high, and is likely to remain high unless and until abolitionists stop moralizing and start talking about the limits of effective/just government. I strongly believe the media should be doing a more thorough and effective job documenting the skews of capital punishment rather than preaching why they and a few other think it is wrong.

Posted by: Doug B. | Sep 27, 2011 8:40:39 AM

peter --

As Doug points out, more diplomatically than I will, you have next to no understanding of how the public gets persuaded to stop doing X. The main thing you have to do is offer it an acceptable alternative to X.

The public correctly believes that there are some crimes so awful that the DP is the only answer. You might not like that, but you need to open your eyes and accept reality.

Given that reality, the only way to convince the public to even cut back on -- much less eliminate -- the DP is by offering it the next best thing. That's LWOP. Indeed, by far the main pitch of abolitionism these days is that LWOP is cheaper than the DP and is just as safe for the rest of us.

That's demonstrably false, but its falsity is not the point for present purposes. The point is that the if you start talking down LWOP too, you take away the DP alternative that sells the best. And that in turn means that whatever minimal chance abolitionist arguments have will get even slighter.

What you so thoroughly fail to grasp is that public opinion in this country (again correctly) does not share your gushing fondness for killers. It believes they should be punished, not lionized, apologized to and given a heap of social services so that we might expiate ourselves for having been so unfeeling toward them.

One of the things I have learned over the years is that you can't win an argument unless you have at least some feel for what the other side is thinking and why. In your abolitionist, America Stinks bubble, that's exactly what you lack, and for the lack of it you will continue to fail.

Posted by: Bill Otis | Sep 27, 2011 9:10:18 AM

Bill - I tend to ignore your insults because they are given so freely to anyone you identify as opposing your own opinion. Whether it is Grits, "liberal" Supreme Court Judges, criminal defense attorneys, or Brits, it is always the same flavor. No-one who disagrees with you has an ounce of intelligence or understanding. You seem to regard support for your ultra-conservative views as essential qualification of patriotism. Actually, apart from jury service, belief in the death penalty is not an essential requirement of patriotism (or conservatism). I think it is your constant reference to "public opinion" that amuses me the most. I wonder if you would really give up your virtuous support of the death penalty if it emerges in a few years time that the balance reverses on this question. Is that really what makes it right or wrong as a judicial policy? I suspect not, and therefore public opinion is actually irrelevant. You would be on safer ground perhaps if the Constitution provided that the death penalty is a required ultimate punishment. Of course it does not, but merely accepts that the practice in 1787 was lawful. So to of course was slavery. The public have a right to expect of Government and judicial authorities measures to provide a safe environment to live. That safety is not exclusively nor always most effectively, achieved by either incarceration or execution ... even for the heinous of crimes. That, excessively, has been the choice of your political and judicial leaders in the past 30 years or so. It wasn't always so, and it need not (nor should not), be the choice for the future. It is within the power of the US Supreme Court to declare a moratorium tomorrow, and abolition the next day. No external vote is required. They will not be booted out of office if they do it. Democracy is not at stake.

Posted by: peter | Sep 27, 2011 10:56:52 AM

"Those biases are driven by race, class and politics, which influence all aspects of American life. As a result, they have made discrimination and arbitrariness the hallmarks of the death penalty in this country…"

The logic of the Times piece escapes me: America's diverse races, classes, resources, etc., lead capital cases to be decided partially and arbitrarily? If this is the intent, then, fine hypothesis, but…

# 1 Which court cases have been "discriminatory" or "arbitrary", please?

# 2 Is it just death that makes a capital sentence "indefensible"; surely another sentence would be greatly contorted , since "race, class and politics" drive other criminal decisions, do they not?

# 3 If "The death penalty cannot be made to comply with the Constitution," can any penalty "so conceived and so dedicated" be justly composed?

# 4 Since a Jewish son of an immigrant tailor, an English-American butcher's daughter, and an Afro-American share-cropper–-all in my family--could likewise support the liberal use of the death penalty, would it not be * moral philosophy * rather than race and class that have enabled Americans to reach sentencing agreements historically?

The execution of the German agents after less that 6 weeks in 1942 comes to mind {317 U.S. 1}.

Posted by: adamakis | Sep 27, 2011 3:01:07 PM

peter --

It's amazing that you could go on for that long and not say a single word that responds to, much less rebuts, my analysis of why your overheated (indeed frantic) opposition to both the DP and LWOP isn't going to work.

I'm not going to do a line-by-line to answer you, since your extremism on this question puts you essentially out of the argument without the need to answer. But I can't resist this delicious broadside: "No-one who disagrees with you has an ounce of intelligence or understanding."

What complete nonsense. Doug Berman, who disagrees with me on most things, has plenty of intelligence and understanding, as I said explicitly in the first entry on this tread. Did you follow suit? Nope, not a bit. Instead, you lauch against him with the uusual criticism of anyone who supports the death penalty to any extent whatever.

Wanna tell me again who insults those who disagree?

Posted by: Bill Otis | Sep 27, 2011 3:36:46 PM

Prof Berman,

Your (passionate?)logic is impressive, but very frequently misses the larger (human) points.

The academic, logical-positivist-limited approach - which is the only thing you ever use - is inherently inadequate for some topics - like when it presumes to be able to determine with logic when it is suitable to kill people.

Death really is different - and you really just don't get that.

Posted by: anon | Sep 27, 2011 4:30:42 PM

Little boys playing with their little (numbers) blocks in the sandbox.

Posted by: anon2.5 | Sep 27, 2011 4:43:01 PM

The funny thing, anon, is that I fully agree that "Death really is different" but for me this becomes an argument for some special kind of punishment for those who intentionally kill others (especially if/when they kill multiple others).

The arguments against the death penalty hinges, in my view, not only on death being different, but also on the GOVERNMENT causing a death being different, and also on a curious willingness to tolerate governments causing innocent deaths in order to (a) wage war, (b) build roads, (c) limit access to certain scarce resources, and do lots of other important government activities, but not in an effort to reduce crime and/or serve other ends of a criminal justice system.

You can (and perhaps should) accuse me of putting logic ahead of emotion in this setting, and to that charge I will always plead guilty. But I also think many, if not all, persons who come in contact with the criminal justice system would perfer it to likewise place logic ahead of emotion when doing its business.

Posted by: Doug B. | Sep 27, 2011 5:25:47 PM

"I'm not going to do a line-by-line to answer you, since your extremism on this question puts you essentially out of the argument without the need to answer."
You've got to love it :) Is Bill a class act or what :) You should seriously consider running for President, or at least offer Rick Perry a few tips on how to get out of tight spots on the debating floor :)

Posted by: peter | Sep 27, 2011 6:10:25 PM

peter --

"You should seriously consider running for President, or at least offer Rick Perry a few tips on how to get out of tight spots on the debating floor."

What tight spot do you think I'm in? Two thirds of the audience is on my side. You're the one in the tight spot, and, oddly, you think you can get out of it by insulting the intelligence and morality of your opponents.

How quaint.

Still, speaking of tight spots, you have yet to produce even the ghost on an answer to my post at Sep 27, 2011 9:10:18 AM. Apparently your method of dealing with a tight spot is just ignore the question and whistle right on past.

The arrogance of your attitude on this board is just astounding. You, a foreigner, presume to lecture this courageous country on its "evils," all the while tut-tutting us for feeling "triumphal" (your word) about having eliminated, to your benefit and ours, perhaps the most malevolent man in the world. As to the DP, you have made the same tired arguments for years and lost them for years, with the public, the Congress and the judiciary. But you keep right on keepin' on. The fact that such a large majority of people of good faith reject your position does not inspire in you one whit of modesty or self-doubt.


Posted by: Bill Otis | Sep 27, 2011 9:30:55 PM

Anon: Would you like to be given a choice if you were a cannibalistic serial killer, the death penalty now, or LWOP? Tell us your preference. That choice should be offered to all violent repeat offenders from age 14. The fractions selected will tell us which is crueler, far more reliably than the biased pretexts of rent seeking lawyers dependent on lawyer income generated by live killers, and whose jobs would end by their demise. You are a little arrogant in your argument by authority, and invalid.

Prof. Berman may or may not be a logical positivist (no idea what that is), he is not a straight utilitarian arguing in the public interest. He is more like a crooked lawyer criminal cult enterprise job promoter. I give him credit for recognizing the democratic support of the death penalty and not being a stupid left wing wing academic pinhead. He is quite unique, and may be the brightest professor of the criminal law. (Compare to the Harvard Crim law prof who proposed Mirandizing the sexual encounter in a backseat of a car. You have your wine, your pate, your flowers, the moon, the Sinatra track on. Your lady is staring at your crotch, palpating your six pack, making incomprehensible noises. You now have to pull out a card reading her sexual rights, perhaps not just her right to refuse sex, but likely also one to have an attorney present or to have one appointed if she cannot afford one. Hey, Harvard Law crim law prof, like eff off. Leave us alone. This prof is also in the ALI that writes model legislation for lazy legislators, not just a nut job that can be ignored.)

Prof. Berman is also so intelligent, he likes hearing new stuff from my high school social studies education. The memory of his high school education was wiped out by the cult indoctrination of Harvard Law School. It had to be or he could not function as a lawyer, relying on core supernatural doctrines that do not exist in nature.

Posted by: Supremacy Claus | Sep 28, 2011 6:38:21 AM

SC --

I had known that the "Mirandizing" of a date had been proposed, but I don't know that it's been implemented. The one time I would be happy to be a defense lawyer (before the Campus Conduct Court, or whatever they're called now) would be for the male student charged with having sex with a perfectly willing, legal age female student without getting the sexual Miranda card signed. I would turn around and sue the liberal fascist Czar Judges for everything they owned, and get it.

BTW, your post shows once again that you mix a dead-on spoof of the wacko excesses of liberalism with some excesses of your own. The latter most unfortunately dilute the effectiveness of the former.

Posted by: Bill Otis | Sep 28, 2011 10:17:19 AM

Wow. SC, your post reminded me of a Buckley quote that I "re-remembered" earlier today when reading another article. It is something about preferring to be governed by the first thousand people in the Boston phonebook than by the faculty of Harvard. :-)

Posted by: TarlsQtr | Sep 28, 2011 11:57:19 AM

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