Thursday, June 18, 2009

Modern Forensic Science Alone Isn't Enough to Justify the Death Penalty

A couple of weeks ago, we got into a conversation about wrongful convictions and the death penalty. Jeff the Baptist commented:

Bob is right. Some people like to say that the success of these projects is proof that we should, say, abolish the death penalty. Moral debate about that aside, they don't show that at all. What they show us is that most of the wrongful convictions of the past would never even get to trial today.

We are far more capable now of accurately discerning criminal guilt and innocence than ever before. I find it difficult to use that as an argument against specific types of sentencing.

Well, hopefully modern forensic science would prevent such terrible miscarriages of justice. They would have a chance if convicts were allowed to access DNA testing in order to challenge their convictions:

Splitting 5-4, the Supreme Court ruled Thursday that an individual whose criminal conviction has become final does not have a constitutional right to gain access to evidence so that it can be subjected to DNA testing to try to prove innocence. This was one of four final rulings the Court issued Thursday, leaving ten remaining. The next release of opinions is expected on Monday.

If it's even possible to make a criminal justice system good enough to risk the death penalty (consider me a skeptic), knocking down bad decisions like this would be a first step.

HT: Radley Balko

14 comments:

Divers and Sundry said...

Amen. Count me as a fellow skeptic.

Andy B. said...

I'm with you on this one, John.

James R. Rummel said...

"Modern Forensic Science Alone Isn't Enough to Justify the Death Penalty"

Even if I agree with a change in the political landscape, I start to get profoundly uneasy if someone tries to work the propaganda mojo. If the change is a good idea, then the arguments in favor will stand on their own merits. Moving the goal posts will do nothing but marginalize those who favor reform.

Your position, as stated in the title, is completely false. The death penalty is already here. What has to be justified is the abolishment of same.

Want to know why death penalty opponents have had such a tough time getting their message heard over the past 50 years? There is more than one reason, but what I outlined above is one of the big factors that keep people from listening.

James

Divers and Sundry said...

"Your position, as stated in the title, is completely false. The death penalty is already here."

The death penalty is here, so by virtue of that fact the death penalty need not be justified?

I don't understand that idea.

John said...

James wrote:

Your position, as stated in the title, is completely false. The death penalty is already here. What has to be justified is the abolishment of same.

I don't understand. Please explain.

James R. Rummel said...

"I don't understand. Please explain."

It is simple enough. You are putting your position in terms that make it seem as if further justification of the death penalty has to be produced. That simply isn't true. It is already the law of the land in many states.

By taking this tack, death penalty opponents sound exactly like the fringe. "Explain to me why we should allow executions!" There is no "allow" in the equation. It isn't up to them.

Just so you understand my own position, I think that a few other laws need to be changed before anyone gets around to abolishing the death penalty in many states. I would first like to see mandatory parole laws be rescinded so a life sentence really means life, for example. If there is a reasonable expectation that extremely violent and dangerous criminals will forever be denied a pool of helpless victims, then I don't see why we should have a death penalty.

But first horse, and then cart.

James

John said...

I certainly agree that sentences should be faithfully carried out and parole not be mandatory.

It is simple enough. You are putting your position in terms that make it seem as if further justification of the death penalty has to be produced. That simply isn't true. It is already the law of the land in many states.

By taking this tack, death penalty opponents sound exactly like the fringe. "Explain to me why we should allow executions!" There is no "allow" in the equation. It isn't up to them.



Are you saying that what is right and wrong is determined by the law and not by values external to the law? That is, does an action become morally acceptable because the law accepts it, or vice versa, unacceptable because the law forbids it?

James R. Rummel said...

"Are you saying that what is right and wrong is determined by the law and not by values external to the law?"

I'm talking about real world tactics to get your point across without alienating people on the fence, and you want to ignore it in order to go off on some hair splitting tangent?

Well, at this point I suppose it would be best if I thank you for making my point for me.

Just in case you missed it, the court case that has you all hot and bothered isn't as cut and dried as you seem to think.

James

John said...

Look, you've justified the death penalty by its current legality, which doesn't strike me as a logical perspective -- unless you think that that which is legal must be acceptable. I think that that's an issue even bigger than the death penalty.

If you take the view that the death penalty is okay because cases of actual innocence are too rare to justify eliminating the death penalty, then I could understand that argument. I wouldn't agree, but I could understand. But if you're saying that the death penalty is okay because it's currently legal, then we have a more fundamental disagreement about the nature of law and morality. I'm not trying to go off on a tangent, James. I'm just trying to be sure that I really understand how you are arriving at your position.

Yes, I spotted Tom Maguire's post today. It does indeed look like this was not a good case for convict-paid DNA testing.

Another argument that I've heard is that once a convict has exhausted his appeals, he has no court to appeal to in order to seek access to the evidence. Which I get, but would prefer that legislatures create alternate remedies.

James R. Rummel said...

"Look, you've justified the death penalty by its current legality,..."



I have? And here I thought I was just discussing general perceptions amongst the majority.

We're talking past each other, John. If you want me to discuss my own views on the death penalty, then fine. So far, I haven't done anything but provide the merest simple one paragraph outline, and you have pointedly ignored that outline. Passively accepting the law and resisting revision of same simply because it is the law isn't part of my views, no matter how much you want to insist that it is.

It seems to me that you are interested in attacking anyone with any hint of a contrary opinion, no matter how ephemeral the hint. This is yet another example of how death penalty opponents are shooting themselves in the foot so far as the court of public opinion is concerned. And it reinforces the point I've been making since my first comment.

James

John said...

I have? And here I thought I was just discussing general perceptions amongst the majority.


Well, that was the impression that I got when I read "Your position, as stated in the title, is completely false. The death penalty is already here. What has to be justified is the abolishment of same." Looking over the title of my post, I read this statement to suggest that you were saying that legality determines morality.

We're talking past each other, John. If you want me to discuss my own views on the death penalty, then fine. So far, I haven't done anything but provide the merest simple one paragraph outline, and you have pointedly ignored that outline.


Well, then let's address that paragraph. I assume that you mean the first one. (If not, please correct me):

Even if I agree with a change in the political landscape, I start to get profoundly uneasy if someone tries to work the propaganda mojo. If the change is a good idea, then the arguments in favor will stand on their own merits. Moving the goal posts will do nothing but marginalize those who favor reform.

I'm not really sure what you mean here. Am I propagandizing in my post? I am engaging in rhetorical trickery? Please explain.

It seems to me that you are interested in attacking anyone with any hint of a contrary opinion, no matter how ephemeral the hint.


James, if I have offended you, I apologize. I am not trying to attack you or anyone else in this post. I'm trying to express my disagreement with Jeff the Baptist's point of view that advances in forensic science make the use of the death penalty safer because those same advances in forensic science are sometimes not accessible to criminal defendants.

I do not take the position that the death penalty is inherently wrong or unconstitutional. If a person can be known to be guilty of a capital crime, hang 'em. Nor is it unconsitutional because it was widely understood to not be "cruel and unusual punishment" at the time of the ratification of the 8th Amendment. What I do think is that the criminal justice system is too unreliable to risk the moral harm of potentially executing an innocent person.

This is yet another example of how death penalty opponents are shooting themselves in the foot so far as the court of public opinion is concerned. And it reinforces the point I've been making since my first comment.


I'm not really sure what you mean here. I sense that this has become personal between us, and I'm sorry if I've expressed anything that makes you feel demeaned or insulted. That hasn't been my intention. I think that support of the death penalty is a respectable position. I just disagree with it.

Divers and Sundry said...

He said, "You are putting your position in terms that make it seem as if further justification of the death penalty has to be produced. That simply isn't true. It is already the law of the land in many states."

I just wanted to say that if you've misunderstood him you're not alone. I'm hearing him say the death penalty is justified by its legal status.

jockeystreet said...

I think I understand where he's coming from... that the wording implies that the minds that have to be changed are the people opposed to the death penalty, rather than those who support it. By the use of "justify" there's the implication that people who support it need to convince YOU, and not the other way around.

I don't necessarily agree with that, but that's what I think he's getting at. I don't think he's using "justify" in a moral sense, in the same sense you are.

But even then, your wording would be perfectly legitimate in states like mine, where we're not in the habit of executing anyone these days.

John, I think I agree with you almost 100% on this particular issue. I am opposed to the death penalty, but not for reasons that people often assume. My opposition isn't based on compassion for those being sentenced; there are many, many crimes for which I think people deserve to die. There are a lot of very bad people out there for whom I just can't muster a lot of sympathy, whose execution in and of itself would not be a tragedy.

For me, it's all about trust. Do I trust my government to not make mistakes? Even more, do I trust my government to be honest? To not misuse it?

The answer is no. Death penalty is too open to mistakes, and has too long a history of misuse and abuse.

I find it odd that many of the people who trust the government least-- who want "small" government, who believe that government can't competently run schools or implement health care reform or whatever-- are willing to trust the government when it comes to killing people. The government is incompetent in everything, apparently, except war and executing criminals. I don't know... I guess killing is where we should question it the most, be the most skeptical and cautious. Killing is where it kind of become "big government."

John said...

Well, that's something I can understand. In terms of rhetoric, it's up to death penalty opponents to prove their point. Or for anyone else who wishes to change the status quo in anything.

I find it odd that many of the people who trust the government least-- who want "small" government, who believe that government can't competently run schools or implement health care reform or whatever-- are willing to trust the government when it comes to killing people. The government is incompetent in everything, apparently, except war and executing criminals. I don't know... I guess killing is where we should question it the most, be the most skeptical and cautious. Killing is where it kind of become "big government."


Government is only good at one thing -- breaking stuff. So there's really no substitute for government when it comes to related matters. Governments have killed more people in history than any other type of organization in the world.

And we need governments do protect people from the violence of others. But it has a bad track record when it comes to using the death penalty as a tool in that effort.

So as long as we lock up the most violent criminals for life, there's no real need to resort to capital punishment. Society can live without it, and so I think that we should do without the risk of executing innocent people.