« Controlled Substances # 1: Teaching Drug Possession | Main | Unanimous SCOTUS summary reversal of Ninth Circuit on right-of-appoint-counsel »

March 31, 2013

Two notable (and notably distinct) new capital punishment papers

I tend not to read most of the (voluminous) academic commentary about the death penalty because they usually build to the same type of abolition-oriented conclusions.  But appearing on SSRN in the the past few weeks are these two different kinds of discussions of the death penalty:

The Case Against the Case Against the Death Penalty by Chad Flanders:

Despite the continuing belief by a majority of Americans that the death penalty is morally permissible, the death penalty has few academic defenders.  This lack of academic defenders is puzzling because of the strong philosophical justification the death penalty finds in traditional theories of punishment.  The three major theories of punishment (the deterrent, the retributive, and the rehabilitative), far from showing that the death penalty is not justified, tend to provide good reasons to favor of the death penalty.  Indeed, every attempt to show that the major theories of punishment rule out the death penalty either involves smuggling in other assumptions that are not intrinsic to the theory of punishment or puts into question that theory’s ability to serve as a theory of punishment in general.

Punishment theory provides little basis for sound arguments against the death penalty. Perhaps one could mount a better attack on the death penalty using ideas outside of punishment theory, such as “dignity,” “decency” or “civilization,” but so far, the death penalty's opponents have not met their burden of persuasion.

The Death Penalty Spectacle by Tung Yin:

The death penalty in America has long been a spectacle of sorts, but a recent case in Oregon has verged into the absurd, where the inmate and the Governor are engaged in titanic litigation...except that the inmate is suing to allow his execution to go forward, and the Governor is fighting back in the courts to uphold the reprieve that he issued (and which the inmate purported to reject).

This case is a fascinating commentary on, if nothing else, the fiscal waste of having a death penalty in a state that rarely sentences defendants to death (about one per year on average), and doesn’t execute them unless they “volunteer.” On the other hand, while abolition of the death penalty sounds pretty appealing, this inmate’s case raises a tricky question: he was already serving a life without parole sentence when he murdered another inmate. How should society punish someone like this? Another life sentence is meaningless, and even if one rejects retribution and deterrence as legitimate punishment rationales, incapacitation seems appropriate – executing him would prevent him from killing any other inmates (or guards).

There are, of course, other ways of protecting other inmates: maybe the murderous inmate could be kept in solitary confinement for the rest of his life. The direction of European courts, which have been ahead of our abolitionist movement, as well as the experience here with Ramzi Yousef, one of the deadliest terrorists in U.S. custody, suggests, however, that such conditions may become the new Eighth Amendment battleground. But how is society to protect other inmates if it can neither execute nor place in solitary confinement someone who murders other inmates?

March 31, 2013 at 01:48 PM | Permalink


TrackBack URL for this entry:

Listed below are links to weblogs that reference Two notable (and notably distinct) new capital punishment papers:


Europe has a lively death penalty program.

Try crossing the guards in a German prison. The stress gets to you, and you end up committing suicide. Nearly half the deaths in European prisons are by suicide. In the US, the supervision policies have cut the suicide rate to below that in the general population. An intensely suicidal person is far safer in an American jail than in even a mental hospital, with the US rate down by 90%.

So Euro hypocrites generate worthless government make work jobs by coddling criminals in court, but have zero tolerance for inmate acting up. They kill them at a rate far higher than our death penalty. They hanged themselves, they claim.

Posted by: Supremacy Claus | Mar 31, 2013 3:39:55 PM

SC --

Do you have sources for your comment? I might like to post something about this on C&C, with your permission, in response to the oft-heard claim that the European view of corrections is so much better and more humane than that in the USA.


Posted by: Bill Otis | Mar 31, 2013 5:14:08 PM

Feel free to use any stuff without attribution.

Guidelines helped to drop US jail and prison suicide by 90% (http://bjs.gov/content/pub/pdf/shsplj.pdf). Please, note this improvement came after a lot of tort litigation and payouts. This is an argument that rebuts the sovereign immunity justification. Jails and prisons have control of the body. Therefore they are responsible for suicide and homicides inside their walls, so the tort theory goes. So suicide account for 6% of prison deaths. The Death in Custody Reporting Act of 2000 (DICRA, PL 106-297) also made a difference. The US rate is roughly half that of Europe.


Contrast to Finland.


Here is a case of hanging, which had signs of prior trauma.


Then the Baader Meinhoff gang all committing suicide the same night, and a survivor calling it extra-judicial execution.


Here is a review of the rates in Europe.


Posted by: Supremacy Claus | Mar 31, 2013 8:54:56 PM

SC --

Thank you sir.

Posted by: Bill Otis | Mar 31, 2013 10:27:38 PM

A side benefit of a great reduction in the suicide rate? A great reduction in the rate of prison murders. There is an overlap between the people who try to commit suicide and those are aggressive to others. This side benefit has been noted in successful suicide prevention programs outside of prisons and jails, for example in the military.

Features of prison and military programs: 1) at little or no additional cost; 2) patients are coerced into treatment, and do not have to have a hearing, do not have to have hurt self or others before treatment.

Posted by: Supremacy Claus | Apr 1, 2013 11:47:36 AM

Bill, you're really embracing SC's claim that many European inmates are being murdered and covered up as suicides? ("Euro hypocrites ... have zero tolerance for inmate acting up. They kill them at a rate far higher than our death penalty. They hanged themselves, they claim".) If you buy into that garbage, you're as nutty as SC.

Notice how the role of the comments above are to hijack the conversation from the topic of Doug's post to shift it to false equivalencies and culture war demagoguery. In reality, Europeans incarcerate people at VASTLY lower rates than the US so Bill's desire to pretend the American model is "better and more humane" is nearly as laughable as the fact that a Georgetown law prof would look to nutty ol' SC for his sourcing.

Posted by: Gritsforbreakfast | Apr 1, 2013 12:25:52 PM

One useful section in the second article is something I asked about around here (my Q: what did those in areas w/o a DP do for those who kill in prison or some related "hard" case): "PRISON KILLERS: WHAT SHOULD BE DONE WITH THEM?"

But, though the discussion is useful, it doesn't really (why is unclear) talk about the states w/o a death penalty, including nation states, and how they handle it (including Europe, which has seems to have stricter rules as to solitary confinement). The final word is "Something has to give."

Such areas have complete abolition and even those that do not provide exceptions even for the 'worse of the worst' or enough delay time (for process purposes) to make even the death penalty an incomplete solution here.

As to "the burden of persuasion" of the first essay, it's hard to determine what standard must be met there. Many seem to think the burden was met, including as applied to subsets such as those under 18. And, the "theory of punishment" will entail a number of factors in application. This is true no matter what side you are on in this debate.

Posted by: Joe | Apr 1, 2013 1:08:09 PM

erratum: " even those that do not provide exceptions" should be "DO" -- there are always some exception, such as not killing the insane, even if the person killed in prison.

Posted by: Joe | Apr 1, 2013 1:09:54 PM

You don't read them because they support abolition?

And we should nevertheless read your comments about abolition because...?

Posted by: Ann | Apr 1, 2013 1:36:30 PM

Grits: There is an undeniably higher suicide rate in Euro prisons. The rate of suicide among murderers and other violent offenders is double or more that among non-violent offenders. Perhaps, these are all coincidence. But do you really think, German and Finnish prison officials cannot match US reductions in suicide rates?

Do you really think a 44% of all deaths being by suicide is believable. Even in a state hospital ward for relentlessly suicidal patients, it will not be that high. Deaths by suicide rise with age, and should be low in young adults and middle age.

It is not me saying extra-judicial executions are taking place. It is a survivor of multiple "self inflicted stab wounds," a member of the Baader Meinhoff gang saying so. She was there, inflicting multiple stab wounds on herself.

Perhaps, I am overly suspicious of these extraordinary statistics. But you are surely in denial in buying official claims wholesale without asking for investigations.

Posted by: Supremacy Claus | Apr 1, 2013 2:44:15 PM

Joe: I would like you and other thoughtful people to get away from the idea of the DP as punsihment. It is not a punishment, defined as a consequence which reduces the likelyhood of a behavior. I have argued that retribution is tken from the Bible, unlawfully in this secular nation. I have argued that general deterrence (of others) is unfair, and violates Fifth Amendment due process.

Only incapacitation is a worthy reason for the DP. We are getting rid of the person, in a business like manner. It is not even personal.

Once you accept this idea, then all mitigating factors become aggravating factors because they all raise the risk of killing again. Youth. Insanity. Developmental disability. Past trauma. All should be reason the expeidite an execution.

Posted by: Supremacy Claus | Apr 1, 2013 3:03:21 PM

Grits --

I have a better chance of getting an honest answer from SC than from you. And I will ask anyone I care to to disclose his sources. As it happens, though, I notice you don't dispute the assertion that the suicide rate of European prisoners is lower than that of American prisoners. Do you have any information on that subject and, if so, could you provide YOUR sources?

Or is it just that a law professor is forbidden to be curious, or to ask questions not previously approved by a guy who couldn't quite make it in law school? Or undergrad school, while we're at it.

Posted by: Bill Otis | Apr 1, 2013 3:03:44 PM

One of the purposes of punishment is "incapacitation" ... I think at some point trying to determine motive here is tricky & when something is labeled as a "punishment" for a "crime" that is determined beyond a reasonable doubt, it's a "punishment." There are limited ways you can incapacitate, so changing labels will be of only some value. It does help, perhaps, if we want to create a different sort of legal system than we have now.

Posted by: Joe | Apr 1, 2013 4:05:03 PM

Possible punishment for an LWOP inmate who commits a crime while serving his LWOP sentence: Being forced to read Bill Otis' posts.

Posted by: Terry Swanson | Apr 3, 2013 4:20:21 PM

Post a comment

In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB