So. The Mets just lost the second game of the National League Championship Series to the Los Angeles Dodgers. The critical moment of the game came in the 7th inning. The Mets led 2-1, but the Dodgers had a runner at second when Chase Utley came in to pinch-hit against Noah Syndergaard. Syndergaard was clearly tiring, and Utley managed to get just enough bat on a low change-up to line it over Daniel Murphy's head into right field. Fortunately the runner from second had to hold up to make sure it wasn't caught, and so didn't score. Then Terry Collins brought in Bartolo Colon to relieve Syndergaard, and he induced a hard ground ball up the middle from Corey Seager. Murphy gloved it and flipped to Ruben Tejada, a little off-line. Tejada had to reach back for the ball as he was shuffling over to the second base bag, and then as he was spinning around to throw the ball to first Utley slammed into him, knocking him to the ground and, it transpired, breaking his fibula. Meanwhile, since the double play hadn't been completed, the runner from third scored, and the game was tied at 2.
Ensued a truly bizarre sequence of events. While Tejada was lying on the ground in agony, Dodgers manager Don Mattingly came out and challenged the out call at second, on the grounds that Tejada hadn't touched the bag. Which, I think, he hadn't. But first of all it should've been ruled a neighborhood play, and hence not subject to review; MLB's claim that the throw pulled Tejada off the bag, and hence was reviewable, is nonsense 'cause Tejada caught the ball while he was still headed toward the bag. "Pulled off the bag" clearly implies that you are on the bag, and then an errant throw forces you to come off said bag. Second, I feel like you shouldn't be allowed to challenge on a play where your player seriously injured an opposing player. Of course, totally predictably, Adrian Gonzalez then hit a two-run double, and then Justin Turner drove him in for good measure, making it 5-2 Dodgers. That was all the scoring in the game.
My point in this post is not about what the correct disposition of the ruling on the play should have been. (Because that's obvious: it was interference, and should have been ruled an automatic double play, inning over, Mets still leading. That's not homerism; the announcers on MLB Network were saying the same thing.) Rather, I want to talk about intent. Because Chase Utley, after the game, said that he had no intent to injure Tejada, and his manager said the same thing. But you see, I'm a law student, so I know a little something about intent. The criminal law deals with different varieties of intent all the time. And if you use the criminal law framework to judge Utley, he doesn't come out looking good.
Showing posts with label criminal law. Show all posts
Showing posts with label criminal law. Show all posts
Sunday, October 11, 2015
Thursday, August 13, 2015
The Connecticut Supreme Court is Right: Prospective Abolition of the Death Penalty is Cruel and Unusual
In 2012, the Connecticut legislature abolished the death penalty. Today, the Connecticut Supreme Court held that the death penalty violated the state constitution. You may be wondering how both of those sentences can be true (and no, they didn't reinstate it during the past three years). The answer is that the 2012 abolition was prospective; that is, it did not apply to those who had already been convicted and sentenced to death. The court's ruling, then, was that actually carrying out the death sentences that have already been imposed on Connecticut's 11 death row inmates would be (state-)unconstitutional. More specifically they held that executions would violate the due process provisions of the Connecticut constitution, which are understood to contain a ban on cruel and unusual punishments. Now, there's nothing especially remarkable about the idea that capital punishment is cruel and unusual. But the court's reasoning was, at least in part, new and interesting, and I quite like the move they make.
The basic puzzle of what, at the federal level, we call Eighth Amendment jurisprudence is determining what the second part of "cruel and unusual" means. Well, that's the puzzle if we reject the Scalia-esque "originalist"* notion that the phrase "cruel and unusual punishments" is just a shorthand for a discrete list of punishments considered cruel and unusual in 1791. Which we do. So the question then becomes, okay, we have a sense of what a "cruel" punishment is, but how to measure its unusuality? Do we just count the states? By raw number of jurisdictions, or by population? Do foreign countries count, and if so which ones? How quickly do new trends away from the use of a certain punishment become incorporated into the Constitution? Are public opinion polls relevant? All of this arises primarily in the federal context, wherein the U.S. Supreme Court is interpreting the Eighth Amendment as it applies to the federal government directly and to the states as incorporated into the Fourteenth Amendment. But analogous issues could arise when a state court interprets an analogous provision of the state constitution. How do the other 49 states get counted for that purpose? Do they play the same role as in federal Eighth Amendment analysis, or are they more like foreign nations? After all, they are external to the individual state. But within a given state a punishment won't be "common" or "unusual," it will either be provided for by state law or it won't be; internal counting becomes binary. The whole thing is rather a mess.**
The neat thing about this Connecticut case, though, is that it doesn't have to bother with that whole issue. Because what they say, at least in part, is that we know executing these condemned prisoners would be cruel and unusual because the Connecticut legislature has already said so. They abolished the death penalty! Because they thought it was cruel! Making it, thereafter, not to be found within the state of Connecticut. At all. Which is rather on the unusual side. This is brilliant, and, I think, surely right. Is it not truly anomalous, truly unusual, for a state to inflict a punishment which it has already abolished? Is there not something singularly cruel about saying to a handful of unlucky people, we now think it's wrong to punish anyone as we have determined to punish you, but we will so punish you nonetheless? It's, like, sick.*** It almost has a somewhat bill-of-attainder feel to it, i.e., "we will not impose capital punishment (except on these eleven specific individuals)."
One interesting thing, though, is the dynamic if the rule against prospective abolition (or rather, the rule that any purported prospective abolition must in fact be retroactive as well) became firmly established. Because presumably this would discourage any state that was considering a prospective abolition from doing so--assuming, of course, that there really wouldn't be the appetite for retroactive abolition in that state. So while in principle I might like it if the U.S. Supreme Court held that a state which has prospectively abolished the death penalty cannot carry out executions going forward (again, assuming they're not gonna just do the right thing and hold the whole thing unconstitutional), there might be some interesting prudential reasons not to do that, but rather to hope that the courts of each prospective-abolitionist state will surprise their legislatures with a ruling like this one out of Connecticut. Except that many state courts might come out the other way, and if not then at some point legislatures might wise up anyway. There's sort of an interesting game theory dynamic to the whole thing.
But the basic point is that this is a very clever and well-reasoned decision, and of course a humane and decent one. Also it makes me happy because it was a state law decision and therefore cannot be overruled by the federal courts. Hooray for state constitutional law!
*Asterisk meant to note that Scalia is by no means the exclusive and authoritative oracle of originalism, and other originalists, like Steven Calabresi, might not endorse his approach.
**Of course, this is one of the reasons why I like Justice William Brennan's approach from Furman v. Georgia, which understands "unusual" not to mean "rare" or "infrequent" but to mean "strange" or "weird." Thus he held capital punishment to be cruel and unusual because we long ago abandoned all other forms of corporal punishment, making execution qualitatively unlike any other punishment currently in use within America. Of course, this qualitative determination becomes a matter for the reasoned judgment of judges, rather than imposing any external/objective constraints on judges, but hopefully the paragraph above demonstrates that the quantitative approach is so ill-defined that it doesn't really constrain judges either. Also, y'know, the idea that we need to be constraining judges is itself wrong-headed, but that's sort of a broader point.
***Of course, this isn't the only context in which laws are passed reducing the available punishments for certain crimes on a prospective basis. Recently, for instance, both the federal government and many states have reduced sentences for various drug crimes, but have not automatically released every drug criminal who had already served more than the new maximum sentence for their crime. This feels less appalling, though, and I think the reason why must be found in Brennan's qualitative approach. Connecticut divested itself of the power to impose an entire class of punishment, except for a handful of unlucky souls. By contrast, reducing prison sentences for drug crimes does not strip the state of its power to imprison people. There is also the singular quality of executions, that they are carried out at a specific time subsequent to their imposition. Indeed actually carrying out an execution is commonly understood to be a distinct decision, separate from the decision to impose the sentence; hence, there is something singularly ill-seeming about making the decision to carry out an execution when the state can no longer make the decision to impose such a sentence. I would imagine, however, that other prospective abolitions of whole categories of punishment would raise similar issues.
The basic puzzle of what, at the federal level, we call Eighth Amendment jurisprudence is determining what the second part of "cruel and unusual" means. Well, that's the puzzle if we reject the Scalia-esque "originalist"* notion that the phrase "cruel and unusual punishments" is just a shorthand for a discrete list of punishments considered cruel and unusual in 1791. Which we do. So the question then becomes, okay, we have a sense of what a "cruel" punishment is, but how to measure its unusuality? Do we just count the states? By raw number of jurisdictions, or by population? Do foreign countries count, and if so which ones? How quickly do new trends away from the use of a certain punishment become incorporated into the Constitution? Are public opinion polls relevant? All of this arises primarily in the federal context, wherein the U.S. Supreme Court is interpreting the Eighth Amendment as it applies to the federal government directly and to the states as incorporated into the Fourteenth Amendment. But analogous issues could arise when a state court interprets an analogous provision of the state constitution. How do the other 49 states get counted for that purpose? Do they play the same role as in federal Eighth Amendment analysis, or are they more like foreign nations? After all, they are external to the individual state. But within a given state a punishment won't be "common" or "unusual," it will either be provided for by state law or it won't be; internal counting becomes binary. The whole thing is rather a mess.**
The neat thing about this Connecticut case, though, is that it doesn't have to bother with that whole issue. Because what they say, at least in part, is that we know executing these condemned prisoners would be cruel and unusual because the Connecticut legislature has already said so. They abolished the death penalty! Because they thought it was cruel! Making it, thereafter, not to be found within the state of Connecticut. At all. Which is rather on the unusual side. This is brilliant, and, I think, surely right. Is it not truly anomalous, truly unusual, for a state to inflict a punishment which it has already abolished? Is there not something singularly cruel about saying to a handful of unlucky people, we now think it's wrong to punish anyone as we have determined to punish you, but we will so punish you nonetheless? It's, like, sick.*** It almost has a somewhat bill-of-attainder feel to it, i.e., "we will not impose capital punishment (except on these eleven specific individuals)."
One interesting thing, though, is the dynamic if the rule against prospective abolition (or rather, the rule that any purported prospective abolition must in fact be retroactive as well) became firmly established. Because presumably this would discourage any state that was considering a prospective abolition from doing so--assuming, of course, that there really wouldn't be the appetite for retroactive abolition in that state. So while in principle I might like it if the U.S. Supreme Court held that a state which has prospectively abolished the death penalty cannot carry out executions going forward (again, assuming they're not gonna just do the right thing and hold the whole thing unconstitutional), there might be some interesting prudential reasons not to do that, but rather to hope that the courts of each prospective-abolitionist state will surprise their legislatures with a ruling like this one out of Connecticut. Except that many state courts might come out the other way, and if not then at some point legislatures might wise up anyway. There's sort of an interesting game theory dynamic to the whole thing.
But the basic point is that this is a very clever and well-reasoned decision, and of course a humane and decent one. Also it makes me happy because it was a state law decision and therefore cannot be overruled by the federal courts. Hooray for state constitutional law!
*Asterisk meant to note that Scalia is by no means the exclusive and authoritative oracle of originalism, and other originalists, like Steven Calabresi, might not endorse his approach.
**Of course, this is one of the reasons why I like Justice William Brennan's approach from Furman v. Georgia, which understands "unusual" not to mean "rare" or "infrequent" but to mean "strange" or "weird." Thus he held capital punishment to be cruel and unusual because we long ago abandoned all other forms of corporal punishment, making execution qualitatively unlike any other punishment currently in use within America. Of course, this qualitative determination becomes a matter for the reasoned judgment of judges, rather than imposing any external/objective constraints on judges, but hopefully the paragraph above demonstrates that the quantitative approach is so ill-defined that it doesn't really constrain judges either. Also, y'know, the idea that we need to be constraining judges is itself wrong-headed, but that's sort of a broader point.
***Of course, this isn't the only context in which laws are passed reducing the available punishments for certain crimes on a prospective basis. Recently, for instance, both the federal government and many states have reduced sentences for various drug crimes, but have not automatically released every drug criminal who had already served more than the new maximum sentence for their crime. This feels less appalling, though, and I think the reason why must be found in Brennan's qualitative approach. Connecticut divested itself of the power to impose an entire class of punishment, except for a handful of unlucky souls. By contrast, reducing prison sentences for drug crimes does not strip the state of its power to imprison people. There is also the singular quality of executions, that they are carried out at a specific time subsequent to their imposition. Indeed actually carrying out an execution is commonly understood to be a distinct decision, separate from the decision to impose the sentence; hence, there is something singularly ill-seeming about making the decision to carry out an execution when the state can no longer make the decision to impose such a sentence. I would imagine, however, that other prospective abolitions of whole categories of punishment would raise similar issues.
Thursday, May 14, 2015
It Isn't, or Shouldn't Be, the NFL's Job to Punish Crimes
So apparently the official talking point in the Boston sports world about the four-game suspension of Patriots quarterback Tom Brady for what seems to have been his role in actually seriously cheating, at least in the AFC championship game last year right before the Patriots' Super Bowl win (and possibly, like, for many years prior) is that it's an outrage that Brady was suspended for twice as long as Ray Rice was for his domestic abuse. And like, so, the thing is, my instinct about Brady is that the suspension is an outrage, in that it should've been for a whole season. And so the Ray Rice comparison line annoys me, because I basically agree that the Ray Rice thing was handled disgracefully and that he got off awfully light. Certainly the point that, y'know, abusing footballs shouldn't be seen as worse than abusing women or whatever is an accurate one. But like, I dunno... I kind of feel like it isn't, or shouldn't be, the NFL's job to punish crimes? Like, domestic abuse is an offense against the victim and an offense against the state; it's not an offense against the National Football League, and cheating at football in the semifinal game of the NFL playoffs is. We wouldn't want the U.S. government, or the government of Massachusetts, to punish Brady for his cheating at football, I don't think, because it's not that kind of offense.
In my Criminal Law class we discussed at one point the idea of "shaming penalties," where instead of directly, like, punishing the (typically low-level) offender, e.g. by imprisoning or even fining them, but rather just basically publicizes their offense. There's a sense that these punishments manage to be less cruel than, say, incarceration, while still being unpleasant enough to be a deterrent (indeed, perhaps more of one) and maybe even, if done right, having some rehabilitative effects. One line of criticism is that they're humiliating, to which the defenders rather powerfully respond, have you seen our prisons? But another line of attack is that there's something a bit disturbing about where exactly the punishment comes from in these shaming punishments. It comes from everyone in the community. In the most troubling cases, the government seems pretty explicitly to be trying to foster a mob mentality that will enlist the public to carry out the sentence, basically, by basically making the offender persona non grata in that community. And this is kind of troubling. It's almost, like, an embrace of the lynch mob by the government, or at least it can approximate that. Obviously imprisonment often leads to that same kind of informal social sanction afterward, but I kind of think that it shouldn't, or at least not insofar as those sanctions are meant as sanctions rather than as sensible precautions against a potentially dangerous or untrustworthy person. I tend to think that we should let the state punish people, and then once it's had its say, we should welcome people back into society as full citizens, though without turning a blind eye to any dangers they may represent.
Which brings us back to Brady and Ray Rice. Like, it really, really shouldn't be the NFL's job to punish Ray Rice. And people who do bad things, including beat their girlfriends which is a very bad thing, shouldn't just stop being able to be part of society. The idea that sports leagues should have the policy that people who've committed crimes of a certain level should never be allowed to participate in them strikes me as a terrible one. The problem is that this all takes place in the shadow of the well-known fact that the state isn't doing it's effing job with regard to domestic violence, so basically if the NFL doesn't punish Ray Rice, no one will. And in certain ways the NFL is even in a better position to punish him than the state is, because it doesn't need to hear the victim testify, it doesn't need to get proof beyond a reasonable doubt, it can just say, hey, we saw the video, we know what we think went down, we're gonna suspend his ass. But that's a huge problem! For those of us who believe in the ideals of the criminal justice system, and of innocent until proven guilty and the like, the idea that when someone is known to have done a bad thing, this should be handled by having anyone in society who has power over them and who isn't bound by the Bill of Rights should just punish them any way they can, it's, like, it's really problematic, and it really does kind of feel like mob justice.
Now, that doesn't really point to a solution, since it's not like the general unenforcement of domestic violence laws is gonna change any time soon, and I'm not really saying that I think the NFL shouldn't be allowed to discipline its players for their off-field misdeeds. But it's wrong, I think, to reason from the fact that domestic violence is worse than cheating at football to the conclusion that the relative lengths of the Brady and Rice suspensions say something so terrible about the NFL's priorities. The NFL isn't in the business of outlawing domestic violence. It is in the business of making sure dudes don't cheat at football.* One of these things is much, much more its responsibility than the other, and that's not something wrong with the world. That's something right with the world! The NFL shouldn't just decide that, because domestic violence is so bad, it's going to assume as much responsibility for punishing and deterring it as it does for cheating at football, no more than any one of us has the right to go out and become a vigilante.
So, I'm sorry Boston, but pointing at Ray Rice doesn't give you a great argument for why Tom Brady is being treated unfairly.
*Well, arguably it is. Or at least it should be.
In my Criminal Law class we discussed at one point the idea of "shaming penalties," where instead of directly, like, punishing the (typically low-level) offender, e.g. by imprisoning or even fining them, but rather just basically publicizes their offense. There's a sense that these punishments manage to be less cruel than, say, incarceration, while still being unpleasant enough to be a deterrent (indeed, perhaps more of one) and maybe even, if done right, having some rehabilitative effects. One line of criticism is that they're humiliating, to which the defenders rather powerfully respond, have you seen our prisons? But another line of attack is that there's something a bit disturbing about where exactly the punishment comes from in these shaming punishments. It comes from everyone in the community. In the most troubling cases, the government seems pretty explicitly to be trying to foster a mob mentality that will enlist the public to carry out the sentence, basically, by basically making the offender persona non grata in that community. And this is kind of troubling. It's almost, like, an embrace of the lynch mob by the government, or at least it can approximate that. Obviously imprisonment often leads to that same kind of informal social sanction afterward, but I kind of think that it shouldn't, or at least not insofar as those sanctions are meant as sanctions rather than as sensible precautions against a potentially dangerous or untrustworthy person. I tend to think that we should let the state punish people, and then once it's had its say, we should welcome people back into society as full citizens, though without turning a blind eye to any dangers they may represent.
Which brings us back to Brady and Ray Rice. Like, it really, really shouldn't be the NFL's job to punish Ray Rice. And people who do bad things, including beat their girlfriends which is a very bad thing, shouldn't just stop being able to be part of society. The idea that sports leagues should have the policy that people who've committed crimes of a certain level should never be allowed to participate in them strikes me as a terrible one. The problem is that this all takes place in the shadow of the well-known fact that the state isn't doing it's effing job with regard to domestic violence, so basically if the NFL doesn't punish Ray Rice, no one will. And in certain ways the NFL is even in a better position to punish him than the state is, because it doesn't need to hear the victim testify, it doesn't need to get proof beyond a reasonable doubt, it can just say, hey, we saw the video, we know what we think went down, we're gonna suspend his ass. But that's a huge problem! For those of us who believe in the ideals of the criminal justice system, and of innocent until proven guilty and the like, the idea that when someone is known to have done a bad thing, this should be handled by having anyone in society who has power over them and who isn't bound by the Bill of Rights should just punish them any way they can, it's, like, it's really problematic, and it really does kind of feel like mob justice.
Now, that doesn't really point to a solution, since it's not like the general unenforcement of domestic violence laws is gonna change any time soon, and I'm not really saying that I think the NFL shouldn't be allowed to discipline its players for their off-field misdeeds. But it's wrong, I think, to reason from the fact that domestic violence is worse than cheating at football to the conclusion that the relative lengths of the Brady and Rice suspensions say something so terrible about the NFL's priorities. The NFL isn't in the business of outlawing domestic violence. It is in the business of making sure dudes don't cheat at football.* One of these things is much, much more its responsibility than the other, and that's not something wrong with the world. That's something right with the world! The NFL shouldn't just decide that, because domestic violence is so bad, it's going to assume as much responsibility for punishing and deterring it as it does for cheating at football, no more than any one of us has the right to go out and become a vigilante.
So, I'm sorry Boston, but pointing at Ray Rice doesn't give you a great argument for why Tom Brady is being treated unfairly.
*Well, arguably it is. Or at least it should be.
Sunday, April 19, 2015
Why Death Is Different
The central problem of capital punishment law, or at least of capital punishment doctrine, is the tension between the demand for rational, consistent sentencing free from arbitrariness or bias on the one hand and individualized sentencing on the other hand. The former idea was the basis for the Furman v. Georgia decision that briefly instituted a national moratorium on capital punishment, and the idea in that case was that it was simply unacceptable that, of the large number of people out there convicted of capital offenses, only a small number were chosen to die and there didn't seem to be any apparent acceptable reason why these people, and not those other people who committed the exact same crime, ought to die. There were of course readily apparent unacceptable reasons, namely that if you were poor or black you were probably one of the ones who "ought" to die. The Court didn't really grapple with those issues, but it did say that arbitrary imposition of the death penalty was unacceptable, and that something must be done to limit the ability of sentencing juries (for it is juries, not judges, doing the sentencing in most every capital scheme these days*). However, the Court has also held that a capital sentencing scheme must allow the jury the essentially unlimited ability to exercise mercy: that is to say, to look at the particular defendant as an individual and decide that, despite their crimes, they do not deserve to die. There is of course a problem here, and as Justice Blackmun observed in his dissent from the denial of certiorari in Callins v. Collins, in which he wrote his famous "From this day forward I no longer shall tinker with the machinery of death" line, the end result has just been to subject a (slightly) smaller number of people to the same kind of arbitrary sentencing that was at issue in Furman.
One natural response to that whole discussion is to say, well, how is this problem in any way peculiar to capital cases? Doesn't the tension between the demands for consistency and for individualized mercy manifest itself in any kind of criminal case? What's different, in other words, about death? And I've never had a great answer to that. I mean, there are obvious reasons why the death penalty is different in general, mostly the irreversibility of a wrongly imposed sentence. But I think I only just realized why death is different specifically as regards this specific little paradox. And the reason, I think, is a line that a number of different death penalty advocates use; a quick search shows it being used by Bryan Stevenson and by Helen Prejean:
And so the demand for sentencing to be individual really is peculiar to capital cases. In every other kind of case we're happy, more or less, to just say, y'know what, you did the crime, so you have to do the time, no matter how much of a worthwhile person you might otherwise be. But we can't quite bring ourselves to say that when we're talking about killing the person. But that kind of thinking is just anathema to what our legal system is supposed to be. This isn't to say that the same issues of racial bias don't find ways to manifest themselves at the lower levels of criminal cases; they surely do. But it's not just racial bias that's wrong with capital sentencing: it's the feeling that, of the set of people who committed certain crimes formally denoted the "worst of the worst" (although that designation is basically a joke given that most jurisdictions include felony murder), some are being executed and others aren't basically just on the basis of whether the jury likes them or not. That kind of stops feeling like the rule of law, and it only does so because we (rightly) can't bring ourselves to kill someone who has anything worth saving in them, even if they may have committed terrible, terrible crimes. Because we recognize, on some level, that people are—or at least can be—more than the worst thing they've ever done.
And that's why death is different (in this regard).
*In a few places judges can "override" a jury's verdict. In even fewer places that can include overriding a life imprisonment verdict and having the judge himself impose a death sentence.
One natural response to that whole discussion is to say, well, how is this problem in any way peculiar to capital cases? Doesn't the tension between the demands for consistency and for individualized mercy manifest itself in any kind of criminal case? What's different, in other words, about death? And I've never had a great answer to that. I mean, there are obvious reasons why the death penalty is different in general, mostly the irreversibility of a wrongly imposed sentence. But I think I only just realized why death is different specifically as regards this specific little paradox. And the reason, I think, is a line that a number of different death penalty advocates use; a quick search shows it being used by Bryan Stevenson and by Helen Prejean:
Each of us is more than the worst thing we've ever done.And I submit that this incredibly powerful idea is simply not relevant in non-capital cases. It is always true. The criminal is always more than just the crime, no matter what the crime. But that doesn't mean they shouldn't be punished for the crime. Except when the punishment in question is their total destruction. Then this idea becomes relevant in a big way. And it makes us feel the need to ask of each capital defendant, well, how much more? The way the penalty phase of most capital trials proceeds these days, I believe, is basically that the defendant tries to show the jury something in them that's worth saving, to show the jury that they are meaningfully more than the worst thing they've ever done. Whereas, say, a proper psychopathic serial killer may really just not be appreciably more than all the murders they've committed, and is hence seen as not worth saving.
And so the demand for sentencing to be individual really is peculiar to capital cases. In every other kind of case we're happy, more or less, to just say, y'know what, you did the crime, so you have to do the time, no matter how much of a worthwhile person you might otherwise be. But we can't quite bring ourselves to say that when we're talking about killing the person. But that kind of thinking is just anathema to what our legal system is supposed to be. This isn't to say that the same issues of racial bias don't find ways to manifest themselves at the lower levels of criminal cases; they surely do. But it's not just racial bias that's wrong with capital sentencing: it's the feeling that, of the set of people who committed certain crimes formally denoted the "worst of the worst" (although that designation is basically a joke given that most jurisdictions include felony murder), some are being executed and others aren't basically just on the basis of whether the jury likes them or not. That kind of stops feeling like the rule of law, and it only does so because we (rightly) can't bring ourselves to kill someone who has anything worth saving in them, even if they may have committed terrible, terrible crimes. Because we recognize, on some level, that people are—or at least can be—more than the worst thing they've ever done.
And that's why death is different (in this regard).
*In a few places judges can "override" a jury's verdict. In even fewer places that can include overriding a life imprisonment verdict and having the judge himself impose a death sentence.
What Kind of God Is This
I'm doing the last set of readings for my Capital Punishment class, one chunk of which is about innocence, that is to say, about the process of getting people out of prison and out from under a death sentence on the grounds that they actually didn't commit the crime. And some of the readings are about the case of Anthony Ray Hinton, recently exonerated off of Alabama's death row after nearly three decades. Hinton was surprisingly honest about how angry he was, saying, for instance:
And the idea is that God, the Almighty and Benevolent, will punish Hinton with an eternity of damnation and torment if he does not forgive these people? That's just... that's just sick. Whatever there can be said for forgiveness, I think it just cannot be something that anyone gets to demand of you. Forgiveness is an act of grace, a fact which I believe is a big part of Christian theology.* And this is worse than just the various prosecutors and judges and the like demanding forgiveness from Hinton as of right. The idea here is that failing to forgive in Hinton's situation would be a sin, an offense not against those who wronged him but against the sovereign, so to speak. What kind of sovereign makes that a crime? What kind of sovereign turns to the victim of such a horrid injustice and says, look matey, if you don't find it in your heart to forgive your oppressors, I will consider that an offense against me and I will punish you for it, harshly? Like, what the hell? A god who demanded such of his subjects would not deserve words like "benevolent," to my mind; no, he would deserve words like "tyrant." Certainly he would not deserve our allegiance, let alone our love; perhaps our obedience, simply through raw brute-force deterrence, but that's not a very awe-inspiring figure.
Fortunately, the god in question (almost certainly) does not exist. But the people who propagate the idea of that god do exist. And really it's them I'm angry at. Anthony Ray Hinton should not be required to forgive the judges and prosecutors who robbed him of the better part of his life on pain of damnation; that's obvious. But equally, Anthony Ray Hinton should not be led to believe that he has to forgive those judges and prosecutors on pain of damnation. They don't necessarily have as much to answer for as the judges and prosecutors themselves, but the people who lead other people to believe in a tyrant god like this have an awful lot to answer for.
*Okay, yes, there is or at least has been a big split over whether salvation is a matter of grace or a matter of doing good works. But I'd say that the latter camp basically doesn't believe that salvation is a matter of forgiveness, of god's forgiving people for their sins, but rather sort of a matter of weighing a person's sins against their good works and seeing which predominates. I think. But don't really ask me, it's really not my area.
"The State of Alabama let me down tremendously. I have no respect for the prosecutors, the judges. And I say that not with malice in my heart. I say it because they took 30 years from me."And:
"When the very people that you've been taught to believe in, the police, the D.A., these are the people that are supposed to stand for justice, and when you know that they lied to you, it's hard for you to have trust in anybody."Pretty, y'know, reasonable, right? I share his sentiments, basically, though I've never suffered from the problems he's talking about. But then there's this:
"I've got to forgive. I lived in hell for 30 years, so I don't want to die and go to hell. So I've got to forgive. I don't have a choice."And can I just say, f*ck that. That is so effing messed up. I mean, look, some people find it therapeutic or whatever to forgive those who have wronged them; certainly there's something to be said for not carrying your anger around with you forever. But, like, the people in question do not on the merits deserve forgiveness (at least, unless any of them have fessed up and admitted that they made a mistake, as the original prosecutor in another one of these cases did). They did something that was not so different from a murder, when you think about it, in robbing a person of the ability to pursue any happiness at all for the better part of his adult life and probably making it damned difficult for him to do so even after he's been released.
And the idea is that God, the Almighty and Benevolent, will punish Hinton with an eternity of damnation and torment if he does not forgive these people? That's just... that's just sick. Whatever there can be said for forgiveness, I think it just cannot be something that anyone gets to demand of you. Forgiveness is an act of grace, a fact which I believe is a big part of Christian theology.* And this is worse than just the various prosecutors and judges and the like demanding forgiveness from Hinton as of right. The idea here is that failing to forgive in Hinton's situation would be a sin, an offense not against those who wronged him but against the sovereign, so to speak. What kind of sovereign makes that a crime? What kind of sovereign turns to the victim of such a horrid injustice and says, look matey, if you don't find it in your heart to forgive your oppressors, I will consider that an offense against me and I will punish you for it, harshly? Like, what the hell? A god who demanded such of his subjects would not deserve words like "benevolent," to my mind; no, he would deserve words like "tyrant." Certainly he would not deserve our allegiance, let alone our love; perhaps our obedience, simply through raw brute-force deterrence, but that's not a very awe-inspiring figure.
Fortunately, the god in question (almost certainly) does not exist. But the people who propagate the idea of that god do exist. And really it's them I'm angry at. Anthony Ray Hinton should not be required to forgive the judges and prosecutors who robbed him of the better part of his life on pain of damnation; that's obvious. But equally, Anthony Ray Hinton should not be led to believe that he has to forgive those judges and prosecutors on pain of damnation. They don't necessarily have as much to answer for as the judges and prosecutors themselves, but the people who lead other people to believe in a tyrant god like this have an awful lot to answer for.
*Okay, yes, there is or at least has been a big split over whether salvation is a matter of grace or a matter of doing good works. But I'd say that the latter camp basically doesn't believe that salvation is a matter of forgiveness, of god's forgiving people for their sins, but rather sort of a matter of weighing a person's sins against their good works and seeing which predominates. I think. But don't really ask me, it's really not my area.
Tuesday, April 7, 2015
Moral Certainty and the Constitution
Criminal defendants are innocent until proven guilty beyond a reasonable doubt. That's the standard formulation, the modern one at least. The idea is pretty simple: criminal convictions carry severe penalties, usually imprisonment, these days for lengthy terms, and so if there's doubt as to whether or not the defendant is guilty, we shouldn't impose those penalties on them. Except that there's always some doubt about everything, so we limit it to reasonable doubt. Makes sense. Another version of the same idea, which I believe may have been used in criminal cases in the old days, is the idea of proof "to a moral certainty." Moral certainty is an old idea that seems to have been inspired as a defense against, like, philosophical skepticism. The idea is, well, okay, yes, we never really know anything absolutely for certain, but we can know things to a degree of certainty that's enough to act on. Moral certainty is basically, I would think, that degree of certainty upon which it is morally acceptable/defensible/correct to act. And of course, this standard will be more or less strict depending on the action being contemplated. Sometimes we might think it correct to act on little more than just a hunch or a suspicion, because it's not that bad if we're wrong, or because it could be very bad if we don't act and should have. In, say, the criminal law context, however, we really don't want to convict someone who doesn't deserve it, for the reasons given above, and so it takes a lot of proof to prove guilt to a moral certainty. It's all one standard, but the work it does varies by context.
I've just been reading McCleskey v. Kemp for my Capital Punishment class. That's the case where the Supreme Court rejected a challenge to the Georgia death penalty as racially discriminatory and hence a violation of the Equal Protection Clause despite an incredibly sophisticated statistical study demonstrating that death-eligible killers whose victims were white got the death penalty a lot more often than those whose victims were black. The Court was basically applying standard (twisted) Equal Protection doctrine, which holds (under the Washington v. Davis standard) that a challenge under the Equal Protection Clause bears the burden of demonstrating intentional discrimination on the basis of race or some other improper factor. Merely showing that a policy has a "disparate impact," i.e. that it's worse for black people/women/etc. than for whites/men/etc., is not enough, although a sufficiently stark disparity can be circumstantial evidence of discriminatory intent. So in McCleskey, the Court says that this study shows only the risk that race may infect capital sentencing decisions, not that any given sentence was the product of intentional racial discrimination. After all, the authors of the study conceded that they cannot prove "to a moral certainty" that race influenced any particular case.
And when I read that phrase, I just had to think, like, what does moral certainty require in this case? I mean, I actually think that the idea of moral certainty ought to doom the death penalty altogether,* but let's set that aside. The Court was asked in this case to set aside McCleskey's death sentence as having been improperly influenced by race. If McCleskey is wrong and his sentence was totally race-free, but the Court found for him anyway, well, horror of horrors, he would spend the rest of his life in jail. That's, I mean, if we consider that a by-hypothesis fair jury thought he should hang, then I guess that's not a great result, but certainly, Warren McCleskey's being imprisoned rather than executed isn't in any way repugnant to our fundamental laws or principles of justice. If, on the other hand, he was right, and his sentence was discriminatory, but the Court didn't act, well then, a black man would be executed for the specific crime of killing a white person. And that is a constitutional abomination. And so it seems to me that this is a case where the "moral certainty" standard is very low. In fact I think the "moral certainty" standard should basically be on the other side, that unless we could say to a moral certainty that race was not the deciding factor in McCleskey's case we should grant him his reprieve.
And this, I think, should hold true across constitutional law generally. People often say that our Constitution, with its multiple veto points between the bicameralism-and-presentment legislative system, the President's pardon and prosecutorial discretion powers, judicial review, etc., is designed to minimize the amount of legislating that goes on, that it is inherently biased in favor of government inaction. As Akhil Amar I think rightly notes, however, the system is not really designed to prevent any laws from passing but to prevent unconstitutional laws from passing: everyone gets a chance to disapprove a law if they think it's unconstitutional. And if we buy that understanding of the Constitution's overarching priorities, then shouldn't we have a general rule that we won't accept the risk of a constitutional violation? We already do this in places: the Miranda rule, for instance, is a clear case where the constitutional violation is not interrogating a suspect without having first informed them of their rights, it's tricking someone into confessing who doesn't know that they have a right not to, and we can't know that this isn't happening unless we provide a warning. There are other examples, but there are also lots of places where we take the opposite approach, where the Court in essence seems to view the wrongful exercise of judicial review as this terrible tragedy that we must be so very careful to avoid. But that just seems backwards. The tragedy is letting constitutional violations happen right under our noses, when we know that they might be happening, just because we can't be sure that they are. We should err, in other words, on the side of not violating the Constitution, and judges are supposed to play their part in making sure that we do.^
This is, I think, one of the strongest forms of my problem with modern equal protection doctrine and the Washington v. Davis standard: discrimination on the basis of race is, like, the greatest constitutional evil there is. It's America's original sin, we literally fought a war that culminated in a series of amendments designed to eradicate it, and the only thing that lets us even pretend to be a decent country is that beginning in 1954 we actually started trying to live up to those amendments. So why the bloody hell is the burden on the challenger to prove that there was intentional racial discrimination? Maybe some of the time when policies have a racially disparate impact it will be completely innocent, but like, so what? If we assume ad arguendo that there's this vast swath of racially disparate things governments do where we just can't tell whether or not they have discriminatory purpose, shouldn't we just not do any of those things? Like, even when we're wrong, I'm not too cut up about having governments no longer do things that disparately hurt black people. If that is the cost of my false positives, and the cost of false negatives is allowing deliberate racial discrimination to proceed, like, even under the Washington v. Davis theory that the Constitution only forbids the latter, shouldn't we still be willing to swallow an awful lot of false positives to avoid false negatives? Now, I actually think we can be somewhat more, ahem, discriminating between different disparate-impact policies, and sort out which ones are okay and which ones aren't (basically by putting stronger and stronger burdens on the government to justify its policy choices as the disparities grow wider), but the prime directive of our equal protection doctrine has just got to be making sure that, as far as is possible, we not let organs of the American government do racially discriminatory things.
And in general that we not allow constitutional violations to happen. We, the American people acting through our federal and state governments, don't have to do things. We could not do things. And so, I think, we shouldn't require moral certainty, in any very stringent sense, before courts will stop us from doing things in the name of the Constitution; rather, we should demand moral certainty that our actions are constitutional before we do them. And courts should be similarly hesitant to allow any government action, particularly action that deprives any person of life, liberty, or property, to proceed if they cannot satisfy themselves that it is constitutional. Perhaps there should be some prudential exceptions to that rule, where the practical consequences of inaction in a field of constitutional uncertainty will be truly dire, or--if this is a thing--where the potential violations feel somewhat de minimis. And the rule isn't that all legislation must prove its constitutionality beyond a reasonable doubt, as we mean that in the criminal context. But the judicial attitude should be one of vigilance, of caution not toward wielding the awesome power of constitutional review but toward failing to wield that power when the Constitution's defense required it.
*Once we admit that there's any possibility of wrongful convictions, which at this point is on par with admitting that the earth is round, then, well, we just don't have to execute people; even in cases with the most overwhelming proof of guilt of the most reprehensible crimes, we can just lock people up, presumptively forever, but then retain the ability to at least partially fix our mistakes if it turns out we made one.
^Of course, judges aren't the only ones with this responsibility; in at least some senses, legislatures have primary responsibilities for not passing unconstitutional laws in the first place. This doesn't mean, however, that legislatures should decline to pass any law that they worry the courts will invalidate; doing so would result in a gap between those laws that the courts actually do think are unconstitutional and those that the legislature can actually pass, which would be a needless limitation on the people's ability to self-govern. Rather it means that a legislature should obviously not pass any law which it itself believes to be unconstitutional, and (zooming in one level) legislators oughtn't vote for laws they think are unconstitutional. That includes laws that the courts would predictably uphold!
I've just been reading McCleskey v. Kemp for my Capital Punishment class. That's the case where the Supreme Court rejected a challenge to the Georgia death penalty as racially discriminatory and hence a violation of the Equal Protection Clause despite an incredibly sophisticated statistical study demonstrating that death-eligible killers whose victims were white got the death penalty a lot more often than those whose victims were black. The Court was basically applying standard (twisted) Equal Protection doctrine, which holds (under the Washington v. Davis standard) that a challenge under the Equal Protection Clause bears the burden of demonstrating intentional discrimination on the basis of race or some other improper factor. Merely showing that a policy has a "disparate impact," i.e. that it's worse for black people/women/etc. than for whites/men/etc., is not enough, although a sufficiently stark disparity can be circumstantial evidence of discriminatory intent. So in McCleskey, the Court says that this study shows only the risk that race may infect capital sentencing decisions, not that any given sentence was the product of intentional racial discrimination. After all, the authors of the study conceded that they cannot prove "to a moral certainty" that race influenced any particular case.
And when I read that phrase, I just had to think, like, what does moral certainty require in this case? I mean, I actually think that the idea of moral certainty ought to doom the death penalty altogether,* but let's set that aside. The Court was asked in this case to set aside McCleskey's death sentence as having been improperly influenced by race. If McCleskey is wrong and his sentence was totally race-free, but the Court found for him anyway, well, horror of horrors, he would spend the rest of his life in jail. That's, I mean, if we consider that a by-hypothesis fair jury thought he should hang, then I guess that's not a great result, but certainly, Warren McCleskey's being imprisoned rather than executed isn't in any way repugnant to our fundamental laws or principles of justice. If, on the other hand, he was right, and his sentence was discriminatory, but the Court didn't act, well then, a black man would be executed for the specific crime of killing a white person. And that is a constitutional abomination. And so it seems to me that this is a case where the "moral certainty" standard is very low. In fact I think the "moral certainty" standard should basically be on the other side, that unless we could say to a moral certainty that race was not the deciding factor in McCleskey's case we should grant him his reprieve.
And this, I think, should hold true across constitutional law generally. People often say that our Constitution, with its multiple veto points between the bicameralism-and-presentment legislative system, the President's pardon and prosecutorial discretion powers, judicial review, etc., is designed to minimize the amount of legislating that goes on, that it is inherently biased in favor of government inaction. As Akhil Amar I think rightly notes, however, the system is not really designed to prevent any laws from passing but to prevent unconstitutional laws from passing: everyone gets a chance to disapprove a law if they think it's unconstitutional. And if we buy that understanding of the Constitution's overarching priorities, then shouldn't we have a general rule that we won't accept the risk of a constitutional violation? We already do this in places: the Miranda rule, for instance, is a clear case where the constitutional violation is not interrogating a suspect without having first informed them of their rights, it's tricking someone into confessing who doesn't know that they have a right not to, and we can't know that this isn't happening unless we provide a warning. There are other examples, but there are also lots of places where we take the opposite approach, where the Court in essence seems to view the wrongful exercise of judicial review as this terrible tragedy that we must be so very careful to avoid. But that just seems backwards. The tragedy is letting constitutional violations happen right under our noses, when we know that they might be happening, just because we can't be sure that they are. We should err, in other words, on the side of not violating the Constitution, and judges are supposed to play their part in making sure that we do.^
This is, I think, one of the strongest forms of my problem with modern equal protection doctrine and the Washington v. Davis standard: discrimination on the basis of race is, like, the greatest constitutional evil there is. It's America's original sin, we literally fought a war that culminated in a series of amendments designed to eradicate it, and the only thing that lets us even pretend to be a decent country is that beginning in 1954 we actually started trying to live up to those amendments. So why the bloody hell is the burden on the challenger to prove that there was intentional racial discrimination? Maybe some of the time when policies have a racially disparate impact it will be completely innocent, but like, so what? If we assume ad arguendo that there's this vast swath of racially disparate things governments do where we just can't tell whether or not they have discriminatory purpose, shouldn't we just not do any of those things? Like, even when we're wrong, I'm not too cut up about having governments no longer do things that disparately hurt black people. If that is the cost of my false positives, and the cost of false negatives is allowing deliberate racial discrimination to proceed, like, even under the Washington v. Davis theory that the Constitution only forbids the latter, shouldn't we still be willing to swallow an awful lot of false positives to avoid false negatives? Now, I actually think we can be somewhat more, ahem, discriminating between different disparate-impact policies, and sort out which ones are okay and which ones aren't (basically by putting stronger and stronger burdens on the government to justify its policy choices as the disparities grow wider), but the prime directive of our equal protection doctrine has just got to be making sure that, as far as is possible, we not let organs of the American government do racially discriminatory things.
And in general that we not allow constitutional violations to happen. We, the American people acting through our federal and state governments, don't have to do things. We could not do things. And so, I think, we shouldn't require moral certainty, in any very stringent sense, before courts will stop us from doing things in the name of the Constitution; rather, we should demand moral certainty that our actions are constitutional before we do them. And courts should be similarly hesitant to allow any government action, particularly action that deprives any person of life, liberty, or property, to proceed if they cannot satisfy themselves that it is constitutional. Perhaps there should be some prudential exceptions to that rule, where the practical consequences of inaction in a field of constitutional uncertainty will be truly dire, or--if this is a thing--where the potential violations feel somewhat de minimis. And the rule isn't that all legislation must prove its constitutionality beyond a reasonable doubt, as we mean that in the criminal context. But the judicial attitude should be one of vigilance, of caution not toward wielding the awesome power of constitutional review but toward failing to wield that power when the Constitution's defense required it.
*Once we admit that there's any possibility of wrongful convictions, which at this point is on par with admitting that the earth is round, then, well, we just don't have to execute people; even in cases with the most overwhelming proof of guilt of the most reprehensible crimes, we can just lock people up, presumptively forever, but then retain the ability to at least partially fix our mistakes if it turns out we made one.
^Of course, judges aren't the only ones with this responsibility; in at least some senses, legislatures have primary responsibilities for not passing unconstitutional laws in the first place. This doesn't mean, however, that legislatures should decline to pass any law that they worry the courts will invalidate; doing so would result in a gap between those laws that the courts actually do think are unconstitutional and those that the legislature can actually pass, which would be a needless limitation on the people's ability to self-govern. Rather it means that a legislature should obviously not pass any law which it itself believes to be unconstitutional, and (zooming in one level) legislators oughtn't vote for laws they think are unconstitutional. That includes laws that the courts would predictably uphold!
Things I Didn't Know About Murder
Apparently the original meaning of the English word "murder" was a secret killing. Like, a killing where there are no witnesses, perhaps prototypically during the middle of the night. "There's been a murder!" then, is said when someone discovers a body, with the murderer nowhere in sight. Just, like, killing someone in the middle of the street in broad daylight was not part of the definition, no matter how "premediated" or however much "malice aforethought," the terms of art that form the standard modern definition. And apparently the reason why this was the original meaning of the word came from, like, Norse/Germanic culture, where such open killings weren't considered especially shameful. Oh, you'd be subject to the weregild, the price a killer had to pay to their victim's family (which, of course, varied as a matter of law with the relative statuses of the victim and the killer), and perhaps you might start a blood feud, but you weren't viewed as having committed a real crime. (It kind of sounds like murder, secret killing, was seen as an offense against the state and hence covered by the criminal laws, whereas ordinary killing was just a private offense and hence subject to something more like civil law.)
I never knew that before, and I wonder how much path dependence there's been in the way we define "murder" as a subset of homicides. That old value system, wherein just killing someone in the street wasn't shameful/wasn't an offense against the state, is long dead, but the law still views cold-blooded, deliberate, planned killings as worse than impulsive or impassioned ones, and many definitions still explicitly include murder by poison, say, as a form of first-degree murder. How much of that is the baleful influence of the barbaric culture from which we got the literal word murder? I wonder.
I never knew that before, and I wonder how much path dependence there's been in the way we define "murder" as a subset of homicides. That old value system, wherein just killing someone in the street wasn't shameful/wasn't an offense against the state, is long dead, but the law still views cold-blooded, deliberate, planned killings as worse than impulsive or impassioned ones, and many definitions still explicitly include murder by poison, say, as a form of first-degree murder. How much of that is the baleful influence of the barbaric culture from which we got the literal word murder? I wonder.
Monday, March 24, 2014
On Reasonable Doubt and Probability
One of the lingering philosophical questions in law generally but in criminal law in particular is whether the various burdens of proof, and the burden of proof beyond a reasonable doubt in particular, are, in some underlying sense, probabilistic. We interpret everything probabilistically these days; sophisticated websites offer projected outcomes for an upcoming baseball season expressed in tenths of a win, explicitly to make the point that they're probabilistic averages, not predictions of a specific final win total. But we are naturally a little uncomfortable convicting someone on that basis, a discomfort rooted in the old phrase "to a moral certainty," the forebear of "beyond a reasonable doubt." Is a 10% probability of the defendant's innocence "reasonable doubt"? Is 1%? Do we really think that we convict people with 99% probabilities that they're guilty? Do we really want to start thinking about this? But isn't it the correct way to think about it, in at least some senses?
And I've just had an idea about a slightly different way to phrase this question, if not to answer it, based on the facts of a case I'm just starting to read for my Evidence class. In this case, which bears the awesome name of People v. Mountain, a criminal defendant was convicted based, among other things, on evidence about blood type. There was type A blood at the crime scene, and the defendant was type A. Type A blood is found in roughly one-third of people, a little more in this country if we don't distinguish between positive and negative. Now, it is unambiguously true that knowing there was type A blood at the scene should make us more likely to believe that a type A defendant, any type A defendant in fact, is guilty. This is where Bayesian statistics come in handy; math below the fold.
Thursday, February 13, 2014
Death or Exile?
The U.S. Supreme Court has held that the American government may not impose exile as a criminal sanction under the Eighth Amendment. Well, okay, technically Trop v. Dulles held that you can't impose loss of citizenship as as punishment, but I'm pretty sure loss of citizenship would be included in any sensible banishment. I mean, the Privileges or Immunities Clause of the Fourteenth Amendment almost certainly means that it must be, as any citizen of the United States could not be denied the right to re-enter the country. So, exile's out. But there's a principle that, in many contexts at least, if the government offers you the choice between a thing it could not constitutionally force upon you and a thing it could validly force on you, that's constitutional. Not in every context, certainly, but in many. So here's my question: would it be constitutional to make exile an available alternative to a more traditional punishment, like imprisonment or death? Could it, in other words, impose some other sentence but give the convicted criminal the option of avoiding that punishment if they agree to leave the country and never come back?
Monday, November 11, 2013
Unfortunately Lousy Arguments Against the Death Penalty, Courtesy of Larry Flynt
Larry Flynt, renowned purveyor of filth and smut to all the world (not that that's necessarily a bad thing), was apparently shot and paralyzed by neo-Nazi Joseph Franklin in 1978. The state of Missouri is planning on executing Mr. Franklin, and Mr. Flynt wishes they wouldn't. Good for him, and a good if perhaps not-very-representative example of how the pro-death penalty position is not at all the pro-victim position, inherently or empirically. He also seems to be in the "death is too easy" camp; that is, his desire to "spare" Franklin's life is about vengeance, since he sees spending decades rotting in jail as a worse punishment than just being terminated as gently as the state can manage (which isn't very gently, but still). And that's a fine position, though I don't think it can plausibly be very central to the abolitionist argument. But here's a quote from Flynt in the ACLU's statement regarding the case:
“I find it totally absurd that a government that forbids killing is allowed to use that same crime as punishment.”This is an unfortunately terrible argument against the death penalty. Why? Because oh boy does it prove too much. Specifically, under this logic we shouldn't let the state imprison people ever, since private parties aren't allowed to go around imprisoning other people they don't like. (Unless they get a government contract and call themselves a private prison, but that's a whole different story.) As I argued here, power is central to the very concept of government; it is in the nature of governments that they have a different relationship to power, force, violence, and coercion than do private individuals. This is what we call the "monopoly on the legitimate use of force." So of course the state does things that it simultaneously forbids private persons to do, like telling other people what they can and cannot do under threat of imprisonment and violence if imprisonment is resisted. As such, therefore, the fact that the government forbids murder doesn't tell us that it mayn't also kill people. Now, as it happens, the claim is true, for various ethical, moral, political, and philosophical grounds. And the fact that death is so horrible is the motivating factor both for state opposition to murder and for private opposition to capital punishment. But we need at least a little bit of political theory to make it clear that, while states legitimately enjoy a monopoly on legitimate imprisonment, it shouldn't get to kill people any more than private individuals do.
Saturday, September 21, 2013
The MPDC's Homicide Clearance Rate and What To Do About a Crime Wave
Matt Yglesias recently tweeted a link to this data from the Metropolitan Police Department of the District of Columbia, showing the city's number of homicides and the clearance rate of those homicides for every year from 2002 through 2011. The really striking part, of course, is the 95.4% closure rate in 2011. That's insane! At the beginning of the period the rate was just 55%. The percent of murders that go unsolved has, in other words, been divided by nine over the last decade in D.C. How did that happen? Did the police get nine times as effective? Or twice as effective, if we look at the yes-solved percentage? Well, that's a somewhat complicated question, and it's tough to know which of the effects at play here are to the credit of the police. But it's clear what is going on here: the MPDC has a certain murder-investigating capacity. Based on these numbers it's somewhere between 110 and 140 cases per year. But the murder rate has been falling like a stone, from 262 homicides in 2002 to just 108 in 2011. The result is that the same total amount of murder-clearing represented a much lower percentage in 2002 than it did in 2011.
Or to put it another way, I had Microsoft Excel calculate trend lines for the plot of both solved and unsolved homicides against total homicides. There's a positive correlation in both cases, of course, but the comparison between the two is an interesting one. Every extra homicide, according to these data, will on average correspond to an extra 0.325 cleared homicides. And the total homicide rate explains 79% of the variance in number of cleared homicides. But every extra homicide, of course, leads to .674 uncleared homicides (after all, it must be one or the other, so the two slopes add up to 1). In this case, though, the R-squared value is 94%. That is to say, based on the data the total murder rate provides an explanation for the changes in the number of unsolved murders which is very nearly complete. We need look basically no further to find out what determines the number of murders which go unsolved in D.C. every year. Oh, and these simple linear trend lines suggest that, if no murders were committed, 63 of them would be solved anyway. That's sixty-three out of zero murders.
Or to put it another way, I had Microsoft Excel calculate trend lines for the plot of both solved and unsolved homicides against total homicides. There's a positive correlation in both cases, of course, but the comparison between the two is an interesting one. Every extra homicide, according to these data, will on average correspond to an extra 0.325 cleared homicides. And the total homicide rate explains 79% of the variance in number of cleared homicides. But every extra homicide, of course, leads to .674 uncleared homicides (after all, it must be one or the other, so the two slopes add up to 1). In this case, though, the R-squared value is 94%. That is to say, based on the data the total murder rate provides an explanation for the changes in the number of unsolved murders which is very nearly complete. We need look basically no further to find out what determines the number of murders which go unsolved in D.C. every year. Oh, and these simple linear trend lines suggest that, if no murders were committed, 63 of them would be solved anyway. That's sixty-three out of zero murders.
Thursday, July 18, 2013
A *Year*?!? For *THAT*?!?!?!
So, a fan ran onto the field at the MLB All-Star Game at Citi Field on Tuesday. It was apparently a Twitter dare; he said he'd do it if he got 1000 re-tweets, which he did, so he did. As a result, he has been charged with "interfering with a professional sporting event," which as my dad points out is a curious thing to make a criminal offense; it's a rather blatant example of the state just acting as the private security force for powerful private organizations. (Although I suppose MLB isn't exactly a private organization...) But here's my point: the penalty he faces, in addition to a potential $5000 in civil penalties, presumably from suits by MLB and maybe also the Mets, is a $1000 criminal fine and... up to a year in jail!
A year.
That's right.
Of course, it is eminently not right. This is insane. This is the kind of thing for which 30-day or 15-day sentences were invented. This is basically a misdemeanor. It's someone making a bit of trouble and being a bit immature, and not in one of the ways that people can be immature in and it's fine because it doesn't really affect anyone else. Running onto the field at the All-Star Game does not suggest that you're someone with a particularly criminal tendency or that you're dangerous, although of course we're not supposed to lock people up because we have reason to think they might become dangerous criminals in the future anyway. It's basically a harmless (in the grand scheme of things) prank; I was watching the TV coverage pretty closely and I didn't even notice that this had happened. So yeah, throw the guy in a cell for a couple of weeks and let him think over why what he did was stupid, but don't ruin his life.
Because you know what turns people into dangerous criminals? One thing is having their lives ruined. Another is spending a year in the slammer with people who actually are dangerous criminals, and who make it difficult to survive without essentially becoming one yourself. In a sense this particular incident is trivial, because it's about one guy who ran onto the field at the All-Star Game. But in two other senses it is anything but: first, because it might honestly ruin that guy's life for no good reason, and second because the way we treat criminal "justice" in this country is insane. Jail sentences have been inflated beyond all proportion and it's one of the worst things about our country. It's divorced from any purpose at this point, not even pure vengeful retribution I think because no one can maintain that Dylan McCue-Masone's heinous crimes demand harsh retribution.
In fact, to be completely honest I think the only interpretation of this particular sentence is as a form of something I saw in a description of the eighteenth-century English legal system: terror. The courts of justice are being used to allow the rich and powerful to keep the little people in a state of terror, knowing that if they put one toe over the line set by their betters, they will be crushed. This is a philosophically indefensible thing for a government to be doing, and it needs to stop.
A year.
That's right.
Of course, it is eminently not right. This is insane. This is the kind of thing for which 30-day or 15-day sentences were invented. This is basically a misdemeanor. It's someone making a bit of trouble and being a bit immature, and not in one of the ways that people can be immature in and it's fine because it doesn't really affect anyone else. Running onto the field at the All-Star Game does not suggest that you're someone with a particularly criminal tendency or that you're dangerous, although of course we're not supposed to lock people up because we have reason to think they might become dangerous criminals in the future anyway. It's basically a harmless (in the grand scheme of things) prank; I was watching the TV coverage pretty closely and I didn't even notice that this had happened. So yeah, throw the guy in a cell for a couple of weeks and let him think over why what he did was stupid, but don't ruin his life.
Because you know what turns people into dangerous criminals? One thing is having their lives ruined. Another is spending a year in the slammer with people who actually are dangerous criminals, and who make it difficult to survive without essentially becoming one yourself. In a sense this particular incident is trivial, because it's about one guy who ran onto the field at the All-Star Game. But in two other senses it is anything but: first, because it might honestly ruin that guy's life for no good reason, and second because the way we treat criminal "justice" in this country is insane. Jail sentences have been inflated beyond all proportion and it's one of the worst things about our country. It's divorced from any purpose at this point, not even pure vengeful retribution I think because no one can maintain that Dylan McCue-Masone's heinous crimes demand harsh retribution.
In fact, to be completely honest I think the only interpretation of this particular sentence is as a form of something I saw in a description of the eighteenth-century English legal system: terror. The courts of justice are being used to allow the rich and powerful to keep the little people in a state of terror, knowing that if they put one toe over the line set by their betters, they will be crushed. This is a philosophically indefensible thing for a government to be doing, and it needs to stop.
Friday, May 24, 2013
Yes, Of Course We Should Feed Rapists and Murderers. Oh, And We Already Do
Sen. David Vitter (R-LA) recently added an amendment to the farm bill to prevent those convicted of violent crimes from receiving food stamp benefits. Kevin Drum wrote a blog post on the subject of this amendment, in which he quotes someone else saying that, once such an amendment is proposed,
Also, it's worth noting that taxpayers feed murderers, rapists, and pedophiles all the time, when they're in prison! Actually taxpayers pay less to feed an imprisoned murderer for live than they would pay to have that murderer executed, but taxpayer money, typically at the state level, is responsible for every calorie a prisoner ever consumes. Because, until and unless the state decides to kill a prisoner, it still recognizes its basic obligation not to let that person starve, and while imprisoned they rather plainly have no other means of sustenance. The percent share of convict-food that's taxpayer funded is way, way lower for the set of released-from-prison convicts than for the set of still-imprisoned convicts. So, given that, as Kevin Drum notes, this has zero impact on either the fiscal picture or the future violent-crimes rate, the actual philosophical message being sent is entirely incoherent: while the state is in the act of punishing these people it will respect their right to sustenance by providing their entire diet, but once it formally releases them back into society it will insist that they be allowed to starve if they are unable to find food themselves. It's pointless cruelty for the sake of pointless cruelty. They're people just like everyone else, and until you decide to kill them you have the same responsibility for their non-starvation as you do everyone else's.
Then the tacit question arises: Does anyone in this chamber want to stand up and say that taxpayers should feed murderers, rapists and pedophiles? No? Of course not.Okay, fine, I'll say it: of course the taxpayers should feed murderers, rapists, and pedophiles, at least those who qualify for taxpayer-feeding by the normal criteria. They are still human beings, and society has not decided that they have forfeited their right to live. If it had, it would have executed them, which I'm against in any case but which is by no means implausible in practice. By releasing these people from prison, society is signalling that it still considers them members of itself. Thereafter leaving them to fend for themselves against the prospect of starvation, while not forcing others similarly situated socioeconomically to do so, is incoherent.
Also, it's worth noting that taxpayers feed murderers, rapists, and pedophiles all the time, when they're in prison! Actually taxpayers pay less to feed an imprisoned murderer for live than they would pay to have that murderer executed, but taxpayer money, typically at the state level, is responsible for every calorie a prisoner ever consumes. Because, until and unless the state decides to kill a prisoner, it still recognizes its basic obligation not to let that person starve, and while imprisoned they rather plainly have no other means of sustenance. The percent share of convict-food that's taxpayer funded is way, way lower for the set of released-from-prison convicts than for the set of still-imprisoned convicts. So, given that, as Kevin Drum notes, this has zero impact on either the fiscal picture or the future violent-crimes rate, the actual philosophical message being sent is entirely incoherent: while the state is in the act of punishing these people it will respect their right to sustenance by providing their entire diet, but once it formally releases them back into society it will insist that they be allowed to starve if they are unable to find food themselves. It's pointless cruelty for the sake of pointless cruelty. They're people just like everyone else, and until you decide to kill them you have the same responsibility for their non-starvation as you do everyone else's.
Sunday, March 17, 2013
Arbitrary and Capricious, Eighteenth-Century Style
I'm doing some reading for my British History class about the criminal "justice" system in England in the 1700s. Apparently, during that century Parliament passed an awful lot of new laws authorizing capital punishment for various offenses against property. However, the number of actual executions for crimes against property didn't increase much at all, even as the number of convictions for capital crimes against property did. Why? Because an awful lot of death sentences got commuted by royal prerogative into exile to, say, Australia. This happened on the recommendation of judges, and apparently the very same MPs passing the death penalty statutes were often the ones intervening to secure clemency. This seems like a bit of a puzzle, at first, but given the discussion of capital punishment in the contemporary era, and particularly my grandfather's book on the subject, there's a pretty obvious answer that occurs to me. When you have a lot of people getting convicted of capital crimes, most of whom don't actually get executed, it gives the people deciding to whom the pardons will be doled out a tremendous amount of arbitrary and capricious power. It's sort of analogous to what happens if you create a legal code in which just about everyone will be guilty of some minor offense, jaywalking, say, or something perhaps slightly less minor but equally routine, but where as a rule no one is prosecuted. That gives the authorities the ability to selectively enforce those laws against people they don't like, for one reason or another: political enemies, say, or more serious criminals they can't get on the main charges of murder, theft, whatever. And if you just look at the convictions, or in the 18th-century Britain case if you just look at the executions, you won't see anything wrong with the procedure: the people in question were guilty under law of committing crimes, and were punished accordingly. You only notice a problem when you see all of the people equally guilty not being punished, and start to wonder why some got away with their crimes while some had the book thrown at them.
Monday, June 25, 2012
It's Good to See the Eighth Amendment
Not as headline a case as the Arizona immigration case or the yet-to-be-announced Affordable Care Act litigation, but the Supreme Court's ruling today in Miller v. Alabama is really nice to see. Basically this case extends the logic of the 2005 decision Roper v. Simmons, which prohibited the death penalty for crimes committed before the age of 18, to also prohibit life imprisonment without the possibility of parole for such crimes. Both cases featured the Court's four liberals plus Justice Kennedy; though she was still on the Court then, O'Connor dissented from Roper. The argument is very similar in each case: like execution, a sentence of life without parole constitutes "giving up" on someone, condemning them as beyond rehabilitation, beyond correction (in the sense of "Department of Corrections"), beyond any hope that they might some day be able to rejoin society. And, so sayeth the Court, nothing someone does when they're still a minor can be sufficient reason to give up on that person forever.
I'm happy about this case for a lot of reasons, one of which is just that it's a left-wing result that I like very much on its own merits. But I'm also kind of pleased to see slightly innovative uses of the Eighth Amendment continuing even through this dark era on the Court. Obviously Kennedy is the key figure there, with this just sort of happening to be one of the areas where he's idiosyncratic (in keeping, generally, with his internationalist slant; many European countries have held life without parole for anyone unconstitutional). But if I were to write up a wish list for genuinely creative liberal jurisprudence should we get to replace one of the five conservatives before one of the liberals gets replaced by a Republican, the Eighth Amendment would be high up on it. Ideally I'd like to see the Court become willing to straight-up scrutinize the whole "punishment fitting the crime" thing, and overturn some of these obscenely long prison sentences that have been trendy over the last few decades. It's a little hard to tell what might be possible with five actual liberals on the Court, since it's been so bloody long since that was last the case, but one reason to smile about Miller is its indication that some creative Eighth Amendment jurisprudence may not be so terribly impossible.
I'm happy about this case for a lot of reasons, one of which is just that it's a left-wing result that I like very much on its own merits. But I'm also kind of pleased to see slightly innovative uses of the Eighth Amendment continuing even through this dark era on the Court. Obviously Kennedy is the key figure there, with this just sort of happening to be one of the areas where he's idiosyncratic (in keeping, generally, with his internationalist slant; many European countries have held life without parole for anyone unconstitutional). But if I were to write up a wish list for genuinely creative liberal jurisprudence should we get to replace one of the five conservatives before one of the liberals gets replaced by a Republican, the Eighth Amendment would be high up on it. Ideally I'd like to see the Court become willing to straight-up scrutinize the whole "punishment fitting the crime" thing, and overturn some of these obscenely long prison sentences that have been trendy over the last few decades. It's a little hard to tell what might be possible with five actual liberals on the Court, since it's been so bloody long since that was last the case, but one reason to smile about Miller is its indication that some creative Eighth Amendment jurisprudence may not be so terribly impossible.
Saturday, March 10, 2012
Guys, You're Making It Too Easy
The past several pro-death penalty readings I've gone through have included the assertion that racial minorities do not face disproportionate execution because a majority of those executed are white, the assertion that the death penalty must be constitutional because the Supreme Court holds it to be so, and the assertion that the death penalty is just because "justice" and "mercy" are two different words. And now I'm reading one trying to argue that the death penalty deters murder, just from looking at national murder rates and execution rates. In it, the guy explicitly says he's not using sophisticated analysis. No kidding. There's a reason why we have sophisticated analysis, dude.
Honestly, these arguments are just gibberish. It's actually difficult to get through them.
UPDATE: Oh, and later in that same article, the guy claims that the graph of executions per year and the graph of the homicide rate are essentially mirror images. Okay, when executions spiked up from approximately zero to around twenty in 1983 the murder rate happened to fall. But over the next decade-plus the execution rate basically doubled again, and the murder rate went up slightly. Jesus, does this guy understand what a mirror does? Like, I'm sorry, but a lot of the people arguing for the death penalty are just making themselves look like absolute idiots.
Honestly, these arguments are just gibberish. It's actually difficult to get through them.
UPDATE: Oh, and later in that same article, the guy claims that the graph of executions per year and the graph of the homicide rate are essentially mirror images. Okay, when executions spiked up from approximately zero to around twenty in 1983 the murder rate happened to fall. But over the next decade-plus the execution rate basically doubled again, and the murder rate went up slightly. Jesus, does this guy understand what a mirror does? Like, I'm sorry, but a lot of the people arguing for the death penalty are just making themselves look like absolute idiots.
Asking the Wrong Questions
These death penalty essays have me fired up.
At the beginning of this one there's a little excerpted quote, I don't even know if it's going to be from the upcoming article, but here it is: "How is executing Karla Faye Tucker by lethal injection any more cruel than the way she used a pick-ax to viciously butcher two people to death?" The answer is, obviously, why in the world should that be the standard? This is why I love this quote from Governor Mike Morris from the movie The Ides of March, when given the Dukakis death penalty question in a Presidential debate. He says that, were his wife raped and murdered, he himself would want very much to find the person who did it and kill them, but society as a whole acting through the government must be better than that. The argument espoused by the question in my reading seems to start by admitting that the death penalty is cruel, but then claiming that, because other people have done things that are even more cruel, it's okay for the state to behave cruelly itself. That's certainly a weird claim to make given our Eighth Amendment, which prohibits cruel and unusual punishment, not punishment crueler than anything the criminal in question ever did.
At the beginning of this one there's a little excerpted quote, I don't even know if it's going to be from the upcoming article, but here it is: "How is executing Karla Faye Tucker by lethal injection any more cruel than the way she used a pick-ax to viciously butcher two people to death?" The answer is, obviously, why in the world should that be the standard? This is why I love this quote from Governor Mike Morris from the movie The Ides of March, when given the Dukakis death penalty question in a Presidential debate. He says that, were his wife raped and murdered, he himself would want very much to find the person who did it and kill them, but society as a whole acting through the government must be better than that. The argument espoused by the question in my reading seems to start by admitting that the death penalty is cruel, but then claiming that, because other people have done things that are even more cruel, it's okay for the state to behave cruelly itself. That's certainly a weird claim to make given our Eighth Amendment, which prohibits cruel and unusual punishment, not punishment crueler than anything the criminal in question ever did.
Death Is Not Exile
I am currently in the deeply unfortunate position of having to read yet another piece of writing by Ernest Van Den Haag, prominent twentieth-century death penalty advocate and adversary of my grandfather, Charles L. Black Jr., in that debate. Now, there's a lot to dislike about the article, starting with the fact that every single moral claim he makes is vicious and wrong. But I find this an interesting passage:
Of course, I assume that by using the phrase "human society" he means to imply that, when we kill these evildoers, they depart human society and arrive in the supernatural world, presumably in hell. And if you adopt a worldview with an afterlife, or even a judgmental afterlife with a heaven/hell distinction, then Van Den Haag's "exile" frame makes perfect sense. When you execute someone, after all, the only thing that happens is that they shift from one form of existence to another. That's not so different from exile from, say, Athens, or exile to the Australian penal colony. And it does make a lot of sense to suggest that, if you violate the moral laws of human society badly enough, that society is justified in exiling you. Given that there isn't any substantial portion of the earth that's used as a penal colony these days, and also no other planets we can send people to, the only method of exile would be death.
But if, instead, you assume that what probably happens when you die is that you simply vanish, that your consciousness and your personality and your everything are just snuffed out of existence, then we're not talking about some kind of metaphysical exile. Death is still inevitable, but if the only thing waiting on the other side of death is a vast gaping nothingness, then anything which hastens death by even the tiniest little bit becomes too severe a punishment to comprehend. Now, that statement by itself doesn't establish that such a punishment might not be deserved in some cases, although I also think that. But I can't help feeling like this rhetoric of treating death as exile, rather than as total extinguishing of every facet of existence, contributes to the willingness, nay, eagerness of the religious element of our society in particular for state-sponsored killing.
"Capital punishment, a deliberate expulsion from human society, is meant to add deserved moral ignominy to death. This irks some abolitionists, who feel that nobody should be blamed for whatever he does. But murder deserves blame."He goes on to argue that death is inevitable, while torture is not, so while we (justly in his view) have stopped torturing people as punishment, the mere act of changing the circumstances of their death to be more emphatically ignoble is perfectly okay. But, see what he does there? "A deliberate expulsion from human society." That's an awfully genteel way to describe killing, isn't it?
Of course, I assume that by using the phrase "human society" he means to imply that, when we kill these evildoers, they depart human society and arrive in the supernatural world, presumably in hell. And if you adopt a worldview with an afterlife, or even a judgmental afterlife with a heaven/hell distinction, then Van Den Haag's "exile" frame makes perfect sense. When you execute someone, after all, the only thing that happens is that they shift from one form of existence to another. That's not so different from exile from, say, Athens, or exile to the Australian penal colony. And it does make a lot of sense to suggest that, if you violate the moral laws of human society badly enough, that society is justified in exiling you. Given that there isn't any substantial portion of the earth that's used as a penal colony these days, and also no other planets we can send people to, the only method of exile would be death.
But if, instead, you assume that what probably happens when you die is that you simply vanish, that your consciousness and your personality and your everything are just snuffed out of existence, then we're not talking about some kind of metaphysical exile. Death is still inevitable, but if the only thing waiting on the other side of death is a vast gaping nothingness, then anything which hastens death by even the tiniest little bit becomes too severe a punishment to comprehend. Now, that statement by itself doesn't establish that such a punishment might not be deserved in some cases, although I also think that. But I can't help feeling like this rhetoric of treating death as exile, rather than as total extinguishing of every facet of existence, contributes to the willingness, nay, eagerness of the religious element of our society in particular for state-sponsored killing.
Thursday, February 23, 2012
Bring Back 30-Day Sentences!
I'm sitting in my Law & Society class learning that, when people are considering the possibility of sanctions in considering whether to commit a crime, the certainty of a punishment matters a whole lot more than the severity. So, in other words, if Sanction A is a 50% chance of a 1-year jail sentence and Sanction B is a 25% chance of a 2-year jail sentence, both of which give an Expected Value punishment of six months, most people will be more scared of Sanction A than Sanction B. This is interesting for the death penalty debate, since trying to impose the death penalty makes it much harder to get the punishment imposed. But I think it's also interesting because over the past many decades we've moved away from giving people a 30-day sentence for run-of-the-mill offenses. This is probably a mistake, since it's probably easier to give people 30-day sentences than five-year ones. It's also vastly less destructive of social well-being. At the very least we wouldn't suffer much of a reduction in deterrence, and we'd move away from our 'throw everyone in jail forever' society.
Wednesday, October 19, 2011
The Question All Death Penalty Supporters Need To Answer
It's a reasonable assumption that anyone who in any way supports the death penalty probably doesn't believe that executing a genuinely guilty heinous murderer is fundamentally wrong, so that's not the question. Rather, the question is this:
What is the highest rate of execution of innocent persons that could exist without making you cease supporting the death penalty?This is a question that simply must be answered before a conversation about the death penalty can commence. But I rarely hear it asked. (The rate in question can be in just about any units: innocents per execution, innocent executions per capital crime committed, innocent executions per year, or per capita per year. Whatever.)
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