Friday, December 14, 2007

Justice Kennedy, Call Your Office

In the news:

TRENTON, New Jersey (Reuters) - New Jersey on Thursday became the first U.S. state to legislatively abolish the death penalty since the U.S. Supreme Court reinstated capital punishment in 1976.

It's a trend!


Alex said...


What are your thoughts on the death penalty? There was a time when I was opposed to it thinking myself properly influenced by the sanctity of human life. I've since become convinced by the Kantian view that what is important about human life is - what gives it the sanctity that it has - is that it is the experience of a moral subject. Crucial to the idea of a moral subject is the idea of moral desert: people deserve certain things based on what they do. People who commit certain heinous crimes deserve death. Therefore, those people are put to death consonant with their moral deserts, reflecting the precise level of respect that they, as free, human subjects deserve.

Brian said...

Thanks for the comment (the first one in LPMN history, I might add). As for my thoughts on the death penalty, on the moral question of whether it's OK for the state to kill a criminal my thoughts are quite in agreement with yours (although I could not express the philosophical basis nearly as well as you did.)
There are also several other questions, from a broader policy-analysis perspective, that are almost as important to my position. The most recent reliable studies show that the death penalty does have some deterrent effect on criminals (although the results of older studies are mixed). That's obviously a point in favor of at least keeping the death penalty on the table, if not extending its application. On the other hand, one must (I think) take very seriously the virtually certain prospect that, even with our scheme of rigorous safeguards, innocent people have been and will be executed. It simply is inevitable in a system where the death penalty is used in any significant way.
On the whole, I hold the view that the prospect of executing a very small number of innocent people does not outweigh the positives of retribution and deterrence. Indeed, I believe that use of the death penalty should probably be expanded at the federal level (ie. to more crimes). However, I also believe that death penalty supporters have a special responsibly to ensure that our system of safeguards are maintained and strengthened to minimize the number of those who are wrongfully executed (or wrongfully imprisoned, for that matter) and I think many death penalty-supporting politicians have routinely neglected that responsibility.
In sum, I'm for it, with qualifications.

Hancock.Tom said...

I believe that the death penalty should be extended to traitor football coaches. (Fraudriguez)

Seriously, though, I agree with Alex's idea that the sanctity of human life comes from, in some way, that life's moral character.

The most common argument people use to argue against the death penalty is that innocent people are sometimes put to death. I don't believe that is truly an argument against the death penalty, but an argument that our criminal justice system needs improvement.

Higher salaries for public defenders, magistrates, judges, and court appointed attorneys would help this problem by making those jobs more appealing to quality lawyers. Unfortunately, this simple solution wouldn't fly with the average taxpayer. Explain that the $45/hour offered by the WV court system is highway robbery and joe blow taxpayer won't hear anything past $45/hour. He isn't going to listen to you about how the state only pays its bill once per year, how you have overhead of $35/hour, so $45 isn't that much, how you work 3 to bill 4, etc. etc.

But I digress. The death penalty is an interesting topic but not one I see effecting the upcoming election in any way shape or form.

Hancock.Tom said...

Can you enable post editing? I see some grammar snafus above but I can't fix them!

Brian said...


I agreed with pretty much everything you said. I would note, however, that some criminal jurisdictions (the feds particularly, but also some states) have significantly better criminal-defender provision schemes than ours in West Virginia. Undoubtedly, money is a big explanation for the difference, but I think cultural factors are a part of it as well.

As for the comment editing, I haven't found a way to add it within Blogger (or a way to add in-line spell checking, etc.). I'm looking at some other options as part of my efforts to gradually customize the blog. More on that soon.

Brian said...

By the way, for anyone who hasn't devoted an unreasonably large portion of their lives to the study of constitutional law (meaning virtually any portion), my original post was meant to be a shot at Justice Kennedy's recent views on the evolving nature of Cruel and Unusual Punishment clause and -more particularly- his rather low standards for what constitutes evidence of that evolution. I know Alex and Tom got that, but if you didn't, well, the joke wasn't really that funny anyway.

Alex said...

I will say that at one point I was opposed to the death penalty precisely for the reason that we've touched on here: the possibility of killing an innocent person. Still today I pause, sometimes, over language about moral desert and wonder if it's just pretense, especially when I'm under the spell of imagery like "the machinery of the state."

Yet, if the most ardent foe of capital punishment concedes that a particular crime deserves any punishment at all, he has already accepted the key point: that punishment is about desert.

That's why, Brian, someone holding my position cannot rely on the deterrence effect (conceding, nevertheless, that such an effect exists) because it looks to a different sort of justification for punishment. It looks to the consequences of punishment rather than towards the moral desert of the criminal. The latter position is usually styled retributivism, and I won't now argue the particular merits of that label.

But still, the critic would be right in asking, what about the innocent people who may be killed? I would have to respond by noting that the innocence of one man does not affect the guilt of another. "But how do you know he's guilty? Why act when by doing nothing you can prevent a possible harm? Of course, you can always sentence the murderer to life."

I still find that argument somewhat appealing.