Monday, October 02, 2006

A Response to the Language Guy, on the Death Penalty

The Language Guy recently wrote this post on the death penalty. You don't have to read it to understand my response, since I quote it in most relevant respects. A litle background: to impose the death penalty, the state must prove that there are certain "aggravating factors" beyond the fact that the defendant committed first degree murder. The defendant can raise "mitigating factors" to convince the sentencer that the death penalty should not be imposed. Here is my response:

It should be noted that the state must clearly define and enact, as a statute, anything that can be considered an aggravating factor. Many of these are quite contentious issues, but that's a discussion for another day. In contrast, a defendant can raise any factor (as LG hints) as a mitigating factor.

LG said: "The Supremes sided with the state of Kansas in allowing the state to stipulate that if the mitigating factors do not outweigh the aggravating circumstances, then the death penalty is the appropriate jury choice."

This is true, but do you really think it makes a difference? Honestly. Do you think that jurors can really empirically weigh each of these factors and believe that they come out on balance? And that they would then grudgingly impose a different penalty from what they feel is right? No. Juries will do what they think is right. If they think the bastard deserves to die, they will kill him (I use the word "bastard" because that's the kind of language you would use in referring to a person who does deserve the death penalty). If they think he's the kind of guy that deserves a break, they won't kill him. It's as simple as that.

LG said: "So, robbing a liquor store while brandishing a weapon cannot result in your being put to death but killing the clerk while robbing the store can."

This is also true. It is also true that if the clerk shoots an innocent bystander and kills them in the process of this, then you can also be put to death. It should be noted that under the merger doctrine, you can't be found guilty of felony-murder when the felony in question is assault. (It's unfortunate but unrelated that in the law there are many different, wholly unrelated doctrines called the "merger doctrine".)

LG said: "What is interesting in this particular case is that the Supremes affirm that the burden of proof can be placed on the defendant rather than the state."

This is not what is happening, LG. The state still has to prove the aggravating circumstances. They still have to prove them beyond a reasonable doubt. On the other hand, the defendant need only prove his mitigating factors by a preponderance of the evidence (more likely than not).

LG said: "I ask you which is more important in the grand scheme of things -- whether or not someone is guilty of felony murder or whether or not someone should be put to death for felony murder? Reasonable people could, I suppose, disagree as to the answer to this question."

And reasonable people, as I believe we both are, do in fact disagree, it would seem. This is related to the above issue as well, because actual guilt is not at issue in this stage.

Also related to these issues is that it wasn't all that long ago that all first-degree murder was punished by an automatic death penalty. It is spurious judicial reasoning that has led us to this ridiculous aggravating/mitigating scheme. While it may provide fairness in the individual circumstance, it does lead to unequal treatment. Which ties in with the next issue.

LG said: "Pretrial publicity, racial and ethnic and religious biases, gender biases, and social class and other biases may very well play a role in any given juror's thinking. Asking prospective jurors whether they can render an unbiased verdict is one of the silly exercises the justice system goes through. . . . Do these people really think that prospective jurors are going to always tell them the truth?"

Ah, but these are unavoidable necessities of having a jury system, or perhaps indeed any criminal justice system. And to your question, I think you'd be surprised. Employers put a lot of stock into character tests which asks questions like "Would you ever steal from your employer if you knew you wouldn't get caught?" Many people answer honestly and incriminatingly to such questions.

LG said: "The Kansas statute in contrast to the presumption of innocence demanded of what is called the "guilt phase" of a death penalty case, allows a presumption of guilty . . . ."

See my above comment on the real burden of proof. As far as biasing the jury in favor of imposing the death penalty, I don't see why this is a problem even if it is true. People meeting this phase have already been found guilty, beyond a reasonable doubt by a jury of twelve people, of committing a heinous crime--the ultimate crime of first degree murder. It has to be pretty bad before the prosecutor can prove such a thing, and in many (if not most) cases they will have had the option prior to this of pleading guilty to second degree murder or manslaughter.

The source you then quote shares some of your misperceptions, and I note that it is a biased source affiliate with Amnesty International. As to number 5, I wonder again whether this is such a bad thing.

LG said: "Given how often it has been determined that persons given the death penalty have been proved innocent of the underlying crime, one would think a fair society would bend over backwards in an effort to minimize imposition of the death penalty."

I don't think the penalty phase is the problem. Something is going horribly wrong in the guilt phase, and that is what needs the real attention, not the penalty phase.

As to the ability to have a hung jury in the penalty phase, I have no opinion and no particular knowledge to add any light to the discussion. Maybe it would be good to allow them to hang. Maybe not.

LG said: "Another problem is the absurdity of 'weighing' aggravators versus mitigators."

I have already noted such absurdity and the results of which above, that is, that jurors will follow their gut. This is not the only place where such a gut instinct can be determinative. It goes from everything from deciding the veracity of a witness to determining relative fault in car collision cases in which both parties did something wrong. It's the only way to make a decision, and a decision must be made. We know in our guts that such decisions can be right or wrong, although we can't put it into words.

As to the proof that many innocent people were sent to death, I have already made my points, but I wish to add that I wonder how many people are being properly put to death in comparison. I know that a system with perfect results is something we should strive for, but it is impossible and we need some kind of system for making these decisions. If you have a better one, then I'm sure you'll get the Nobel Peace Prize.

"The first is that District Attorneys are elected. The second is that Judges are elected."

While I agree that judges should not be elected for these kinds of reasons, I disagree on the district attorneys. The things they do are the very kinds of things that the concept of democracy demands the people have input into, suh as decisions whether to be tough on certain types of offenders and whether and to what extent to prosecute various unique individuals who have very different circumstances. These kinds of decisions should be left to elected, accountable people.

As to the standard of "beyond a reasonable doubt" itself, your suggested standard is one often given to explain what that standard means. At least, that is the case in Nebraska. In other words, your suggestion restates the standard and does not change it.

17 comments:

  1. I object on the grounds that your are supremely boring and have a skill at feigning erudition. Your entire post adds nothing new, you typify the "know all" student who feels compelled to mouth off simply because he is currently immeresed in junior law studies. Say something interesting please? and stop agreeing all the time with LG whom I think you have a crush on.

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  2. Allow me to take this point by point, as I took LG's post:

    1. I am supremely boring: Thanks. If you're bored by it, don't read it. My style is interesting at least, even if you don't like my subject matter.

    2. I am skilled at feigning erudition: If ever there was a back-handed compliment, this is it. But there is no feigning here, my friend.

    3. My post adds nothing new: Well, should it? I'm merely keeping the dialog going so that both sides of the story are told. If you want something more interesting on this subject, check out my earlier posts on the topic of the death penalty here and here.

    4. The typification statement: Well, I'm sorry that you're a douchebag. I'm not sure who else is supposed to discuss a subject other than the ones who are knowledgeable about it. I'm not sure what "junior law studies" are. I am a law student. I study the only law studies that there are. I will get my JD in a few months. And, just an FYI, I received a 9 (perfect grade) in Criminal Law, as well as the CALI Excellence for the Future Award, given to one and only one student in a class: the one who got the best grade. I think I know what I'm talking about here.
    And a good deal of my statements here had nothing at all to do with the law anyway, so insofar as that is the case this statement is baseless.

    5. I agree with LG all the time: Did you even read this? I disagreed with LG on nearly every point. And I'm sure that if you go back to his post and read the further comments, you will find a stimulating, civil debate which follows rules normally accepted for such a debate, including the rules of logical argument.

    6. Your apparent obsession with me: How is it that you found this post so soon after it was published, considering that I rarely post anymore?

    7. Your trolling: Stop it, please. Feel free to post any comments you like in this thread and this thread alone (because I feel that even though you have proved yourself to be unable to follow the rules of logical, civil debate, I still think you have a right to defend yourself), but in the future I would appreciate it if you wouldn't comment on any of my other posts.

    I just don't think you have anything of value to add to this blog anymore, and I think in fact your comments detract from the value of the blog, regardless of whether you feel that they have no value at all.

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  3. I'd like to add that I think before your credibility was teetering dangerously. Now that you have continued the assertion that I am LG's yes-man in the face of clear and convincing (dare I say incontrovertible?) evidence to the contrary, your credibility has toppled to nothing.

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  4. yeah, to be honest begstodiffer, you REALLY do not read what Kelly writes- he is one of the people who disagrees with LG the most, and usually intelligently and well, unlike this example here.

    To address the argument, I really cannot agree with the death penalty anyway, but I certainly don't agree with a system where innocent people are put to death, when there are perfectly valid alternatives which are just not as final.

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  5. I'm not sure I like that you said this wasn't an intelligent disagreement, but thanks anyway.

    :)

    As I was making the case in the original thread, claiming that there is too great a possibility of executing an innocent person is playing a shell game. The guilt phase of trial is where the work is needed, not the punishment phase.

    One question that was raised was: Why did abolishing the death penalty get so much support in Europe, but little support in the US?

    As to it not being as final, there is some misperception, I think, in how many chances they get to get out of it. First, they have the guilt phase of trial, then the punishment phase. Then an appeal to a state court, and another appeal to a higher state court, then an appeal to the US Supreme Court. Then they can petition for habeas corpus in a federal court, then appeal to a higher federal court, and then appeal to the US Supreme Court again. There are other steps in here that I missed, I believe, since you can petition for commuting the sentence through some state body. And at all points up to the moment of the execution, the state governor can pardon you. Isn't this enough chances? It boggles my mind that you can't get out of it, if you're innocent, after this many tries. Personally, I think it's too many, but I'm not sure what I'd cut out.

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  6. sorry, I meant to be insulting begstodiffer there, and ended up insulting you!

    Ahem. The appeals process does go on for a long time, but ultimately it seems that it still falls down in many cases- usually where the defendant cannot afford adequate defence. I think we'll have to agree to disagree here...

    On why Europe and not the US? Well Europe is generally more liberal than the US. Why this should be so, I'm not entirely sure. It's certainly a cultural reason, but I am nowhere near informed enough about such things to really make much of a guess- I suppose Europe is generally more dense than the US, which might explain it somehow, and of course our histories are radically different.

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  7. just to clarify... AGAIN, because I'm not entirely sure it's clear, all insults were aimed at begstodiffer, but were phrased poorly.....

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  8. It's alright. It seems you have a lot of problems with phrasing:

    "I suppose Europe is generally more dense than the US"

    :)

    I think you were referring to population density . . . .

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  9. "While it may provide fairness in the individual circumstance, it does lead to unequal treatment."

    This is a fundamental tension that is unsolvable.

    In the criminal justice system, the interests providing a basis for a sentence include (but are not limited to) deterrence, punishment and retribution.

    There is no possible way that these goals can all be served by placing greater importance on consistency. There is subjectivity with regard to the criminal, subjectivity with regard to the fact finder, and a balancing act required to serve justice.

    In my view, the fundamental problem with systems of punishment is that there is no "correct" punishment. If you ask 100 people what the punishment ought to be in a given circumstance, you'll likely get 100 different answers. Consequently, our system defines fairness and justice by its adherence to a principled process, rather than a consistent outcome.

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  10. So now you know how it feels Kelly; to be accused of something when there is no evidence?

    How come you and LG repeatedly did this with my postings (many of which are still there for the curious to examine) yet I am not permitted to do the same?

    I recall many very simple questions that were deliberately, pointedly yet politely asked but sidestepped by both LG and you, for example was Israel in violation of the terms of the UN charter in invading Lebanon? to cite just one example.

    You also rushed to LG's defense on the ridiculous issue of why you think he was right to reprimand me for openly quoting a short statement by Chomsky, yet you and he cite people all the time and I do not see how one can comment or discuss international affairs without citing others, journalists, politicians etc.

    You claimed that it is OK to cite someone quoting "facts" but not OK to cite someone quoting "opinions" but why? and this rule favors the censor because he simply has to state that something is not a "fact" and hey presto, invoke the rule and dissalow the citaton.

    My view was and is let the reader decide for themselves, do not prevent others seeing a debate simply because you do not wish me to comment on something.

    I fully accept that there are many examples of you disagreeing with LG but you often agree readily with him on issues pertaining to me, like censorship, dictating who one may cite and not etc, and it this that I refer to.

    Now getting high-grades carries some value, but isn't in itself that significant, too many people assess the capability and standing of others based upon certification, what you did was to answer the questions in such a way as to maximize your score and thats fine, but it doesnt impress me.

    For someone who has such a high regard for their own expertise, it was indeed odd that you avoided commenting upon Israel and it's violation of the UN charter, i.e. it; commision of war crimes.

    But this is no surprise, because if you defend Israel's actions you must agree that it is acceptable to break the law, but if you insist that it is not acceptable to break the law then you must condemn Israel, and this is why both you and LG reacted as you did, he with censorship and you with a loud silence.

    But these are unwelcome and inconvenient aspects of debate, so lets just delete Hugh's posts and refer to him as a lunatic, is this your approach too?

    Good afternoon.
    Hugh

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  11. I didn't know you got the CALI award for CrimLaw. You didn't tell me; you are truly a humble guy.

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  12. I forgot to say congratulations!

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  13. "So now you know how it feels Kelly; to be accused of something when there is no evidence?"

    I have never done so to you.

    "I recall many very simple questions that were deliberately, pointedly yet politely asked but sidestepped by both LG and you"

    I'm sorry, but I wasn't aware that I had to answer every question. Chances are, if I failed to answer such a question, I didn't know the answer.

    "You claimed that it is OK to cite someone quoting "facts" but not OK to cite someone quoting "opinions" but why?"

    I am still baffled that you fail to grasp the distinction. Or the reason. Go back to all those threads and read everything I wrote on it. I have made it perfectly clear. But the long and short of it is that if it's empirical or uncontroversial it is a fact, otherwise it is an opinion. Conclusory statements (indeed, any evaluative statements) are opinions (e.g. X was in violation of the law, or Y was doing Z deliberately).

    "I fully accept that there are many examples of you disagreeing with LG but you often agree readily with him on issues pertaining to me"

    Perhaps this should tell you something. Me, a right-leaning centrist and somewhat authoritarian, devout Christian, agreeing with LG, an extreme leftist libertarian, avowed atheist. What we have in common is higher education in realms involving logical argument (philosophy and law). Perhaps we know something about what we're talking about here.

    "Now getting high-grades carries some value, but isn't in itself that significant"

    There is something to this statement. But by the time you get to law school, everybody in your class is brilliant, or very nearly so. I would wager that the IQ of everyone here is in excess of 120. Sure, the smartest person in the class doesn't always get the best grade. But you can't get the best grade unless you understand the material better than at least 90% of the rest of the class. As for maxing out my score, that class was unusual in that the test (the only test mind you--almost all law school courses are graded completely on a final exam) was a multiple-choice test. You have to know your shit to get the answers right on such a test. I doubt you've ever seen a multiple choice test like it. It isn't easy.

    "For someone who has such a high regard for their own expertise, it was indeed odd that you avoided commenting upon Israel and it's violation of the UN charter"

    I do indeed have a high regard for my expertise. International law and the recent events in the Middle East are not my area of expertise.

    "if you defend Israel's actions"

    I defended them only to the extent that they were explained to me in that forum. From everything I heard, their actions sounded utterly moral and proper; whether they were a violation of international law is an entirely other matter. If I recall correctly, and since you seem to dwell on this a bit you may remember better than I do, I was unimpressed by the way you made the case for your position.

    "so lets just delete Hugh's posts and refer to him as a lunatic"

    No, I haven't deleted your posts, although I might in the future. And I wouldn't refer to you as a lunatic. That's an outdated term.

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  14. Well I thank you for taking the time to respond, I will confine my response to the issue of justified censorship; you wrote:

    "But the long and short of it is that if it's empirical or uncontroversial it is a fact, otherwise it is an opinion. Conclusory statements (indeed, any evaluative statements) are opinions (e.g. X was in violation of the law, or Y was doing Z deliberately)."

    Am I take it that you consider it appropriate to censor a persons speech if a) They express an opinion and b) if they discuss controversial issues or c) there is some uncertainty surrounding the facts?

    I disagreed with you before and I will continue to do so, particularly because you used it as a basis for accepting censorship and supported LG's position and I do not take kindly to being shut off on such grounds by indviduals who clearly are more interested in self glorification (my IQ far exceeeds yours incidentally but what of it?)

    Your reasoning raises several questions, two of which are:

    1) Who decides if something is a "fact" or not if the two parties disagree on this point?
    2) You claim "conclusory" statements are "opinon".

    With respect to 1) First my very short quotation of a comment by Noam Chomsky was a statement of fact as I tried to point out repeatedly. Chomsky was stating documented facts available from many news sources, these facts pertained to the events preceding the "kidnap" of an Israeli soldier by Hezbollah, these were not opinions.

    This removes one of the defences you and LG erected to justify censoring me, let's move on to b)

    You reason invalidly as did LG that a statement must be false if it is controversial, this is exactly what you write.

    Yet I gave examples of many facts that are controversial, in fact (no pun intended) many issues are controversial precisley because they are supported by facts.

    Now you also claim that the statement "X was in violation of the law" can never be a statement of fact, but this is nonsense, surely if a person has been convicted and found guilty of violating a law, then it is utterly factual to state that after that fact?

    Unless one is a solopsist however, we must all agree on what defines "fact" and "opinion" which people do not always do.

    So because of these difficulties I see no basis for adhering to such an algorithm for deciding if one should or should not censor others.

    If you do not admit opinion, do not tolerate statements that MAY be at variance with "facts" then you destroy the very basis of debate.

    My overall position is that I have been censored whilst engaging in admittedly controversial debate and that you fully support doing so, it must surely come as no suprise that one treated in such a manner is going to protest at such treatement?

    May I ask under what circumstances YOU would take steps to censor me (as you indicate you might do) would it be like LG, when one is challenged so strongly that defeat is unacceptable in a public forum and censorship is the only way to save face?

    Regards
    Hugh

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  15. "Am I take it that you consider it appropriate to censor a persons speech if a) They express an opinion and b) if they discuss controversial issues or c) there is some uncertainty surrounding the facts?"

    You just don't get it, do you?

    a) No. I only consider censorship of a person's own blog appropriate when they express someone else's opinion as proof of a fact. If you have your own opinion, and it's challenged, you can be expected to back it up with facts.

    b) No. Controversial issues are the only ones worth talking about.
    b) AND c) If a state of facts is not generally accepted, then it is controversial. In other words there is uncertainty as to the facts. Then you must be able to back it up.

    I'm not even going to adress the issue that LG or I am more interested in self-glorification. If you understood the issue, which you clearly do not, then you would understand that this is not the case.

    "my IQ far exceeeds yours"

    That is a load of fucking bullshit, and I don't believe it for one second. If that's true, then you must be an amazing mathematical genius while sorely lacking in all other areas.

    "1) Who decides if something is a "fact" or not if the two parties disagree on this point?"

    This should be quite clear in all circumstances. A fact is a fact.

    "Chomsky was stating documented facts available from many news sources"

    Then for the sake of all that's holy, cite it from those news sources. What Chomsky said is irrelevant. What he was talking about is relevant.

    "You reason invalidly as did LG that a statement must be false if it is controversial, this is exactly what you write."

    No, you idiot, that is not what I wrote. Your reading comprehension leaves much to be desired. It is not necessarily false, but you need to be able to back it up with facts and an argument if challenged. If you are unchallenged, then it's uncontroversial and it can safely be assumed that it is true, at least for the time being. If there are various sources of relatively equal authority that disagree, or if there is inadequate information, it is controversial. This was the case with the Israeli issue. Yet you posited that the state of facts was X, when many sources said it was Y, and you claimed that anyone disagreeing with you was wrong, with no basis.

    "surely if a person has been convicted and found guilty of violating a law, then it is utterly factual to state that after that fact"

    That's not necessarily true, as the topic of this post (the death penalty) should make obvious. But you are taking it out of context. The context was before trial, indeed, even before the facts are known.

    "If you do not admit opinion, do not tolerate statements that MAY be at variance with 'facts' then you destroy the very basis of debate."

    At this point, it's really fruitless to try to reason with you. I do in fact admit opinion. Anyone who believes that opinions are entirely personal is a damn fool. Some opinions are better than others. That's the whole point of arguing. You wouldn't argue about a statement of fact. But that's just the thing: you never made arguments for your opinions. That by itself wouldn't be enough, but your persistent defiance of this custom of civil debate, and your inability to just drop the issue when it's clear that you don't understand it, have made it clear to me and to others that discourse with you is a complete waste of time.

    Now that I have reached that fial conclusion through valid logical reasoning, I will no longer respond to you.

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  16. Well I do not require a response, you lost your temper over the issue of IQ, just like the arrogant vain brat that you are.

    You wrote earlier "if it's empirical or uncontroversial it is a fact, otherwise it is an opinion."

    and now you state

    "I only consider censorship of a person's own blog appropriate when they express someone else's opinion as proof of a fact"

    Only a fool would consider my quoting Chomsky as an attempt to submit proof of a proposition, I never claimed to "prove" anything, instead I referred to some uncontroversial facts that happened to have been spoken by Chomsky.

    My reason for doing so was to contrast what was being selectively peddled in the media with other aspects of the affair that were to all intents and purposes unmentioned in the mainstream press.

    You continue:

    "If a state of facts is not generally accepted, then it is controversial. In other words there is uncertainty as to the facts. Then you must be able to back it up."

    Yet nobody, including LG and you, asked me to "back up" anything at that time, there is no such request in the history of those discussions of such a request being made.

    Had you been the honest intellectual you like to imply, then surely you would not have supported my being censored, because I did not do any of those things that you consider necessary for being subject to censorship.

    Now the issue of IQ is fascinating is it not? I could join Mensa tomorrow if I so chose, but have no interest in that, in elitism.

    IQ measures one thing in my opinion and that is the thing that it tests, namely the ability to score in an IQ test.

    I think too much attention is paid to IQ, it measures only some slim aspects of a persons intellectual capability and many people's lives have been damaged because they were told they have a "low" IQ or that it was not "high enough".

    Foor proof of how overrated IQ is with respect to intellect and reasoning skills, one need look no further than your own recent posts here.

    Regards
    Hugh

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