Hangman is coming down from the gallows

I’ve decided that when I title my posts in a very informative, uncreative way, less people read them than if I allude to the content of the post without really giving away what the hell I’m talking about. So, henceforth, I’m going to title my posts with song lyrics (if I can think of appropriate lyrics).

But now that you’re into this post a little bit, I can reveal what I’m actually going to talk about, which is the death penalty. I’m reading a book right now called Ultimate Punishment by Scott Turow, a novelist, but also a lawyer who served on an Illinois Commission to exhaustively investigate the use of the death penalty. I really like the book, partly because of Turow’s unpretentious and easy to understand prose, but also because he tries to address all the major arguments for and against the death penalty with succinctness. I’ll mention some of the cool parts of this book, and then, as I am trained to do, I will take issue with some of the arguments and try to move things in a different direction.

The most interesting part of this book is Turow’s emotional honesty. He has, at different times in his life, been in favor and opposed to the death penalty. Thus, he makes for an excellent guide to this charged issue. Also, he has inside experience with some Illinois death penalty cases. He has some UNBELIEVABLE stories (I mean there’s nothing secret here, it’s all in the public domain) about the conduct of some of the US attorneys in the death penalty cases he was a part of. Holy shit it will blow your mind.

You see, as my father is always fond of telling me, the defense and prosecution are different. The defense gets to play dirty; they are supposed to try and win for their client at all costs. The prosecution however, is constrained by the duty to “seek justice.” They are not supposed to do everything they can to get the accused in jail, but rather, to try and find, objectively, who did the crime. If I’m a mob lawyer and I know my client killed ten people, my duty is still to defend him, as the term goes “zealously.” But if I’m the prosecutor and I find new evidence that the person on trial didn’t do it, I must reveal it, and possibly, dismiss the case.

These US attorneys in Chicago did some unbelievable shit. They were supposed to “seek justice” but instead just ended up hiding a bunch of evidence in DEATH ROW cases. Good god, I wanted to see these guys put in jail for prosecutorial misconduct. They were indicted, but never convicted (insane that they weren’t.) The anecdote I remember most clearly from the book was where a prosecutor was leading a forensic expert through questioning and establishing that the shoe prints found outside the home were size 6 and that the defendant’s shoe size was six. Of course, it came out later upon cross examination, that the shoe prints at the scene of the crime were A WOMAN’S size 6 while the accused was a man. I can’t tell you how angry that made me. Seeking justice my ass.

Anyway, Turow moves to a discussion of the issues, and I think he does a great job.

Nonetheless, there is something I disagree with.

He writes,

To me by far the greatest fallacy in justifying capital punishment with the oft-heard mantra that “the victims deserve it” is that it is, in a favored lawyers’ phrase, an argument that “proves too much” — an argument that, when extended, defeats itself. Once we make the well-being of victims our central concern and assume that execution will bring them the greatest solace, we have no principled way to grant one family this relief and deny it to another. From each victim’s perspective, his loss, her anger, and the comfort each victim may draw from seeing the killer die are the same whether her loved one perished at the hands of the Beltway Sniper or died in an impulsive shooting in the course of a liquor-store holdup. The victims-first approach allows us no meaningful basis to distinguish among murders.

Yet in a state like Illinois, 49 times out of 50, a death sentence is not imposed for a first-degree homicide. Are we saying that justice has not been done in 98 percent of cases? Not according to the Supreme Court, which has established constitutional requirements that presuppose that the death penalty will be imposed on a select basis. The Court requires legislatures to create exacting guidelines about the factual circumstances under which capital punishment may even be considered, followed by a scrupulous weighing of the aggravating and mitigating factors that characterize a particular crime and defendant. And in this formulation, no matter how liberal the victim-impact rules, the expressed desires of survivors for the death penalty have no permissible role. Indeed, when we allow victims to “own” the process, we are defying that framework. (54-55)

What I object to in this is not really the end destination — the conclusion is fine — but how he gets there. In argumentative format, the argument is this.

1. What victims want is just.

2. Victims want first degree murderers to be put to death.

3. Most first degree murderers are not put to death

Conclusion: Our criminal justice system is not handling most cases justly.

This is a reductio ad absurdum, because the argument depends on the listener rejecting the conclusion, meaning that one of the premises must be false. Which one? Turow think we should reject 1, but this argument does not force us to do so, because nowhere does he give any statistics about how people think about first degree murder. He gives arguments about the death penalty is popular and how many people are angry every at the murderers of those they love, but nothing specific enough to support the argument. It’s a simple factual question: do most people who have someone murdered wish the death penalty on the perpetrator?

It’s hard to get data on this because people are usually asked about the policy of the death penalty and not about what they in particular would want. Even then that it seems that many prefer life imprisonment.

However, I think Turow is on to the right argument, but how can we tighten the reasoning behind thinking that victims alone don’t determine the justness of the intensity of punishment? Here’s an argument.

1. What victims want is just.

2. A victim might want the murderer of their loved one to be agonizingly tortured for years.

Conclusion: If a victim wanted a murdered to be tortured, it would be just to torture that murderer.

Of course, I’m expecting most people to think that the conclusion is false thus forcing us to find one of the premises to reject. Unlike with Turow’s argument, there is no choice. 2 is a hypothetical posit and so can’t be denied, leaving us with 1.

This is not a surprising result, and Turow agrees with it: society at large has a place at the table in how we punish people.

I’ll leave this here for now, but if people would be interested in a post about the argument that the death penalty is needed for morally proportionate response to horrible crimes, I have some ideas I’ve been kicking around. Leave a comment and I’ll see if that post would garner any interest.


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