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October 22, 2014

"The Death Penalty’s 'Finely Tuned Depravity Calibrators': Fairness Follies of Fairness Phonies Fixated on Criminals Instead of Crimes"

The title of this post is the title of this new article by Lester Jackson available via bepress SelectedWorks.  Here is the abstract:

It has been loudly and repeatedly proclaimed by opponents that capital punishment is “unfair.”  In their view, it is unfair because (1) only some murderers receive the ultimate sentence and (2) they are not the most deserving.  Underlying this view is the remarkable assumption that fairness is subject to “fine tuning” and “moral accuracy.”

It is argued here that this assumption is indefensible both in theory and in practice.  As a theoretical matter, it is insupportable to suggest that matters of conscience, right and wrong, are subject to calibration or “accuracy.”  Right and wrong are not determined in the same manner as taking blood tests.  Moreover, and this lies at the heart of the fallacy, there simply is no agreement upon what is fair punishment for unlawful intentional killing. Regarding the death penalty, the values chasm is unbridgeable.

In practice, this is clearly demonstrated by the considerations employed by those who allege unfairness.  Using chicanery, outright falsehood and abuse of power, they have a laser focus on convicted criminals with no concern for past -- and future -- victims.  It is easy to worry about criminals when the suffering of victims is left out of so-called fairness calibrations.  When the assessment of fairness is confined to comparing the fate of one criminal against another, the reductio ad absurdum is that there should be no punishment for any violent crime.

This is the inevitable result of what is nowhere found in the actual written Constitution but, nevertheless, has been ordered by anti-capital punishment United States Supreme Court justices: “individualized sentencing.”  That mandate, which places a heavy focus upon a criminal’s background and record, should be reconsidered.

Penal codes make certain conduct criminal.  It is conduct that should be the prime (and perhaps exclusive) consideration.  In determining punishments, the focus should be on crimes and not on the criminals who commit them.  Based on such determinations, another view of fairness is presented.

October 22, 2014 at 10:25 PM | Permalink


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Only 1 in 10 or fewer Index felonies are prosecuted. The crime victim survey does not include many crimes such as child abuse, drug dealing, regulatory crimes, such as consumer fraud, etc.

The sole mature purpose of prosecution is incapacitation. All others are unlawful and a waste of time, such retribution (violating the Establishment Clause), and general deterrence (violating Fifth Amendment procedural due process). Some will not pass a Daubert test (rehabilitation) Some are from a psychotic fantasy world (restitution, restorative justice).

The average career criminal is committing dozens if not hundreds of serious crimes a year.

Given the above facts, each prosecution useful to the taxpayer has to incapacitate the person. It has to stand in for the 1000's of crime of the person, direct and collateral damage of his crimes, and the spectacular, exponential benefit of incapacitation, including the reduction of the fecundity of the prisoner, preventing the crimes of the many children he has not spawned by many hussies.

So the criminal law has to be almost entirely about the person, and not about the crime.

Posted by: Supremacy Claus | Oct 23, 2014 8:21:47 AM

The principle that each person should get equal treatment and treated as individuals seems to me to be "in the Constitution" and the "no concern about victims" claptrap is belied by many opponents of the death penalty. Finally, making sure you justly execute people is a "matter of conscience." Might want to tone it down a tad.

Posted by: Joe | Oct 23, 2014 10:15:16 AM

I am the father of a murdered son and a murdered grandson. I am also a retired natural gas industry executive turned award-winning author with one of my books being "An Eye for an Eye: In Defense of the Death Penalty."
My Comment is:
And if not execution nor LWOP, then what is an appropriate sentence for a murderer like Wilbur Rideau? One year? Six months? No time at all? Give him a Pulitzer Prize and a million bucks and send him on his way? Shall we just eliminate any penalty for serial killers? Then why not eliminate any penalty for grand theft-auto? What do we do with mentally deficient pick-pockets? Maybe heinous murders become a ticket for fame and fortune? Is there no such thing as "crime"?

Posted by: W.T. Harper | Oct 23, 2014 12:57:09 PM

Something of a strawman argument here. Sure, I suppose some people oppose the DP on the grounds that some defendants who get the DP are not the "most deserving," but I think more people probably oppose it because they don't think the state should be in the business of killing people or that the number of DNA exonerations from death row make them question whether innocent people are being executed.

That being said, if he's arguing that all murderers should get the death penalty (which is what I gather from his emphasis on crime-base, and not defendant-based, punishment) then I doubt most Americans, even those who support the death penalty, would get behind that. Supremacy Claus excepted, of course.

Posted by: vachesacree | Oct 23, 2014 1:33:01 PM

Lester is, factually, correct that the public debate is largely about fairness to the murderer, not about any measure of retributive fairness to the innocent murder victim, by way of fair sanction visited upon the murderer.

In terms of proportionality, can there ever be an even "balance", with sanction, when one side is an innocent murder victim, whose murder was undeserved and the other is a guilty murderer whose sanction is deserved?

Of course not.

Posted by: Dudley Sharp | Oct 24, 2014 7:35:04 AM

"whose sanction is deserved"

The proper "sanction" is the debate here, including in writings and otherwise, by families/friends of victims.

The debate overall also appears to be what is just, including taking into consideration of the crime. Doing so without thinking about the victim is somewhat difficult. The debate largely is about the murderer since that is the person who is being punished by the state. But, the victim is not simply ignored.

Posted by: Joe | Oct 24, 2014 9:40:01 AM


To clarify a bit. I am very much in favor of defendant based penalties. Each prosecution has to stand in for 100 major crimes. It is an opportunity to prevent thousands through the incapacitation of the person. The person is the problem, here.

Under 123D, some first degree murderers may go home, and some shoplifters may be executed. The decision just has to serve the public safety and interest. The public is the owner, not the lawyer. That means a penalty is based on the defendant, almost 100% of the time.

Posted by: Supremacy Claus | Oct 25, 2014 11:05:48 PM

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