ColbyCosh.com

Note that even though DNA has been sequenceable for decades now, capital punishment opponents in the U.S. still have not found their smoking gun: the name of a single American individual who, in modern times, is certain to have been wrongly executed. (Though many a promising poster boy has turned out to be guilty after all.)

If you had to bet on whether or not the US has wrongly executed someone in modern times, which way would you go Colby? I'd be pretty comfortable putting a sizable portion of my net liabilities on "Has executed an innocent person".

I mean you're familiar with Canadian cases like Morin, Sophonow and Milgaard. Do you really think that all of the guys who are factually innocent get discovered?

I think it's inappropriate either way to use gross failures of the Canadian system to indict the U.S. one.

The reason you can say you'd bet heavily on "has executed an innocent person" is because the bet as you've designed it is open-ended; it apparently doesn't impress you that three decades of candidates have absolutely all crapped out. Put your net worth on something like "An innocent person will be shown to have been put to death by a U.S. state in the next ten years" and it might actually mean something. I imagine it has probably happened, but your argument only shows that you don't think any real-world standard of care can justify capital punishment. My question, as always, is how any punishment can then be justified.

"I imagine it has probably happened, but your argument only shows that you don't think any real-world standard of care can justify capital punishment. My question, as always, is how any punishment can then be justified."

Because other punishments can be ended/rectified if incorrectly applied.

You figured out a way to go back and make David Milgaard 17 years old again? Awesome, nice work.

I'd have thought, with the advent of DNA testing, that capital punishment would be more palatable. After all, it provides stronger evidence of actual guilt.

I'm not sure it matters in the big picture if the odd person is wrongfully convicted. The thirty they're going to spend on death row gives ample opportunity to correct such mistakes.

Even if it doesn't, far more people are killed by violent offenders who were released too soon. What's the life of a single individual, balanced against these thousands of victims?

Our own justice system shows us very clearly that being too lenient, too careful, does ore harm than good.

Our own justice system shows us very clearly that being too lenient, too careful, does ore harm than good.

Really? How does it "very clearly" show us this?

I think it's inappropriate either way to use gross failures of the Canadian system to indict the U.S. one.

Really? You don't think that the systemic problems that sometimes result in failures of Canadian justice exist in the United States and are possibly even more acute?

Put your net worth on something like "An innocent person will be shown to have been put to death by a U.S. state in the next ten years" and it might actually mean something. I imagine it has probably happened, but your argument only shows that you don't think any real-world standard of care can justify capital punishment.

When it comes to the state killing people, I don't think that there's anything wrong with expecting the standard to be perfection, if it's going to be done at all (which I don't think it should be).

As for an innocent person being shown to have been put to death at some point in the next ten years, I tend to think that it's unlikely that it will be shown to have happened to a certainty.

The difficulty is that the advent of DNA means that we're able to screen out some cases which otherwise would have resulted in some poor bastard getting the needle. There have been people released from death row on the basis of DNA evidence. You know as well as I do though that there isn't DNA evidence in every case and, while the pool might be smaller, there is no reason to think that it's only the cases in which DNA is readily available that sometimes result in wrongful convictions.

My question, as always, is how any punishment can then be justified.

As I've told you before, I see differences between the death penalty and other penalties. I don't think we're likely to convince one another though.

When it comes to the state killing people, I don't think that there's anything wrong with expecting the standard to be perfection, if it's going to be done at all (which I don't think it should be).

What's wrong with it is that it imposes a cosmic standard of justice on human affairs—an error that mankind really ought to have learned not to make by now. The question is, do you believe it is possible for a court to act fairly, give a suspect all the benefits and procedural breaks anyone could reasonably expect for himself, study the evidence carefully and without bias, and still make a mistake once in a blue moon? Accepting this is the price of believing in the possibility of humans to self-organize at all. But, then, you suggest that even if epistemic perfection were possible, we still shouldn't put Clifford Olson or Paul Bernardo to death, so it's not totally clear what your argument is.

Do you see "differences" between the death penalty and other penalties that don't boil down to the fantasy that decades of imprisonment can be "rectified" by a good Pilatean hand-washing? I'd love to hear about a proportional penalty for first-degree murder that doesn't involve prolonged confinement, isn't inherently irreversible, isn't tantamount to torture, and satisfies the practical dual need to protect society and satiate the instinct for retribution. If there were a brain machine that could inject remorse into criminals' heads, I imagine we could dispense with debates like this.

Also, if you want to criticize the U.S. system, then criticize the U.S. system instead of dragging Morin, Sophonow, and Milgaard into it. I would love to hear all about how the state of Montana and the U.S. federal judiciary's care for the rights of Ronald Smith and the precious flower than is his soul have fallen short, considering that he confessed and pleaded guilty while Trudeau was still Prime Minister.

I don't support a death penalty, but I do believe that some people have proven that they must be removed from society for the safety of others. If somebody is sufficiently dangerous and incapable of rehabilitation, there's not much choice other than confining them for the rest of their natural life. That too is a death penalty, just a slow and expensive one. I think it's also worthwhile paraphrasing Robert Heinlein's writing on the death penalty: if you could truly rehabilitate somebody who has committed a crime worthy of the death penalty, how could that person ever live with himself afterwards, knowing what he'd done?

With the release of the Pan Am bomber, can anyone argue, with a straight face, that abolishing the death penalty won't have a ripple effect of increasing leniency towards murderers?

Mean time for a life sentence in the UK is 16 years for those who are "release discretionary". It's 11 years for those who are "release mandatory".

With the release of the Pan Am bomber, can anyone argue, with a straight face, that abolishing the death penalty won't have a ripple effect of increasing leniency towards murderers?

A country sufficiently barbaric to embrace state-sponsored execution is highly unlikely to adopt a policy of compassionate release for convicts whose death is imminent.

In addition, if the UK is lenient towards murderers, perhaps there is something to that, as their murder rate is considerably lower than, say, ours.

Not to speak of the countries with high rates of execution...

United States 6.08/100,000
Sweden 2.64/100,000
U.K. 2.03/100,000
Canada 1.80/100,000
Saudi Arabia 0.92/100,000
Japan 0.70/100,000

Progressive countries like Sweden and the U.K. have higher murder rates than death penalty states like Saudi Arabia and Japan, which are not generally considered lenient towards murderers. I don't attribute the difference to the death penalty, but rather towards societal attitudes towards law and order. A death penalty is in some ways a lazy way of appearing tough on crime without really doing anything fundamental. Leniency is just another form of cop-out. Call it the lazy/abusive father approach vs. the lazy/negligent mother approach.

Trying to explain murder solely by referencing capital punishment is a fools game. It is a complex issue, involving a host of issues, most of them cultural. As AW referenced, an aptitude towards law-abiding is important.

But equally important is a citizenry's trust the law-breakers will be appropriately punished. A man who murders 260+ people and it sentenced to life in prison SHOULD die in prison. I am skeptical that if the death penalty were on the table, even if it were not used, that this would have happened. This ripple effect, where execution is considered too severe, has reached over to where a true life sentence is now considered too severe.

And a citizenry that cannot trust their government to dispense justice just might take that role up itself. Frankly, I think that executing the worst murderers is worth avoiding that.

London is one of the most violent cities in the world, worse than DC or New Orleans or (iirc) Sao Paulo.

I don't know how Tybalt can seriously argue that a lenient justice system reduces crime. Maybe he was grinning while he typed that. I was while reading it.

Via Radley Balko on Twitter:

Over the past five years, the Willingham case has been reviewed by nine of the nation's top fire scientists -- first for the Tribune, then for the Innocence Project, and now for the commission. All concluded that the original investigators relied on outdated theories and folklore to justify the determination of arson.

I guess it depends what your definition of 'certain' is, but that seems awfully close. It doesn't address your general argument about the death penalty being at one end of a spectrum of punishment, but...

The timing of that story is pretty awkward, but on the other hand, it's a spectacularly context-free piece.

My reference to the Canadian cases above was, I think, relevant, because the problems in those cases - bad police work and dodgy eyewitness testimony, for example - will arise in any system of law, even one that strives for fairness. As it so happens, I'm familiar with the Canadian examples.

As far as Willingham goes, we'll see how it all turns out. I'm somewhat surprised that this turned up so quickly but it does seem to be pretty much exactly the kind of case that I suggested above - one in which DNA was irrelevant.

This expert was apparently retained by a commission set up by the Texas legislature. Whether he's right or wrong in this particular case doesn't change my view on the death penalty but, at the very least, this is a guy who you really can't say one way or another that the conviction and penalty was just. The fellow doing the report characterized the fire marshal's evidence as "...hardly consistent with a scientific mind-set and is more characteristic of mystics or psychics."