Policy

So Did Texas Execute an Innocent Man?

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Last month, I wrote about new questions in the case of Cameron Todd Willingham, who was executed in Texas for setting a fire that killed his two children. Nine forensic fire experts have since come forward to say that the fire marshall who testified in Willingham's case had no idea what he was talking about. The most recent expert to review the case, for example, said the marshall's findings were "nothing more than a collection of personal beliefs that have nothing to do with science-based fire investigation."

I wrote at the time that it was tough to say Willingham was innocent, only that he should never have been convicted. But in an in-depth investigation published in last week's New Yorker, David Grann makes a compelling case that Willingham didn't set the fire. Grann also participated in a follow-up chat, and answered criticism of his article—convincingly, I think—on the New Yorker's blog.

So what now? I'm opposed to the death penalty, but mostly because I have little faith in the government to administer it competently. So I've never much doubted that one or more states have executed innocent people. There has long been a sentiment among death penalty opponents that proof of an executed innocent would turn public opinion on the death penalty. I'm pessimistic that's going to happen. But it does raise the question for supporters of capital punishment: Does Willingham's case make you rethink your position? If not, how many more cases of an executed innocent person would it take to make you change your mind? 

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  1. Will it change policy in Texas? Why, of course! The good citizens of Texas will be outraged that a man was executed for the wrong crime!

    BWAHAHAHAHAHAHAHA!

    Apologies to Ambrose Bierce, but seriously. This is Texas. By all accounts Willingham was not the model of an upstanding citizen. That shouldn't matter, but it does. The vast majority of citizens down here will shrug and move on.

  2. I'm only opposed to the death penalty because I think people truly guilty of heinous murder and rape crimes should be made to rot in prison doing hard manual labor along side victimless drug users, internet gamblers, and prostitutes.

  3. The average America firmly believes that a whole lotta folk need killing, and that you gotta break a few eggs to make an omelet.

    So no, this won't have much impact on public opinion.

  4. MNG | September 7, 2009, 3:24pm | #

    robc
    Utilitarianism is like democracy, it's the worst form of ethics except for every other form.

    But yes, if punishing an innocent man would save many lives, then duh it is the right thing to do.

  5. But it does raise the question for supporters of capital punishment: Does Willingham's case make you rethink your position? If not, how many more cases of an executed innocent person would it take to make you change your mind?

    This has always interested me, too. I oppose the DP for what I see as reasons as you. I do think, abstractly, that some deeds can morally call for death, but don't trust the state to competently and impartially dole it out.

    I've found very few supporters who willing to answer questions that would distinguish a pragmatic support from a support based solely on abstract moral belief. Questions like 'how many innocents' are almost always answered with protestations that We Just Need To Get It Right, or arguments that it is the damn lawyers causing doubt - if we'd just kill 'em and forget 'em, we wouldn't have this problem. ("be cheaper, too.")

    I think there are a small number of reasons why at least some DP supporters don't want to talk about utilitarian objections, and that's because they realize those reasons are no longer acceptable in polite company.

  6. It'll only make a difference if some big shot actually uses it to make people aware of it. But there's too much on the political elite's plates to worry about the mere state sanctioned murder of an innocent man right now.

  7. I'm not sure any of this has changed my mind, but for the sake of argument you could say that since we are able to look back and see we have executed innocent people that our system has improved and thus less likely to to do that in the future.

  8. Texas just passed comprehensive legislation to compensate the falsely convicted, an action considered highly improbable not long ago.
    There is hope that other states will follow and that finally some sanity, cooler heads and pragmatism find their way into criminal justice.

  9. "I'm opposed to the death penalty, but mostly because I have little faith in the government to administer it competently."

    Ahh. So let's say they could administer it without error. Then you'd favor having it. Why?

  10. I don't know if highlighting erroneous convictions will do much (though it can't hurt). You know how people say they hate Congress, but that their own Congressman is doing a great job? Seems to me a similar phenomenon with criminal prosecutions. The jury knows that innocent people get erroneously convicted, but this guy is really guilty. After all, his neighbor testified that he had tea and cigarettes when he learned that his dear old mama was dead.

  11. "I'm opposed to the death penalty, but mostly because I have little faith in the government to administer it competently."

    Exactly. Once we put the right people in charge, then only the right undesirables will get killed. I'm sure Obama will get around to this soon.

  12. When a company creates and markets a product that is later shown to be dangerous, the company is forced to make restitution to those customers who bought the product. If someone dies due to negligence, then the compensation to their heirs is that much greater. And when someone willfully ignores safety standards and causes someone's death, that individual can be tried for manslaughter.

    The same standard should be placed on our police and prosecutors. If an innocent person is sent to prison or executed through negligence, the employer of those individuals (the state) should have to pay compensation. If it can be shown that the police and/or prosecutor, or even the expert witnesses, ignored best standards (as it appears the fire investigators did in this case), those individuals need to be tried for false imprisonment and (at least in this case) manslaughter. Only by holding people accountable can you have any guarantee that such slipshod methods won't be repeated in the future.

    As for Willingham, I've made the comment elsewhere that, from what I know of the man's life, he never would've amounted to much (frankly, few of us really will, myself included). Maybe in death he can help accomplish more than he ever would have in life by being a rallying point for anti-death penalty/criminal-investigation reform folks.

  13. I'm sure that many, many people have been incarcerated wrongly, but I doubt that would lead you to a solution of eliminating jail time. You can't give that innocent person thier lost time back. This is just not logical nor "reasoned". You don't not ban something because very rarely it goes bad. You don't refuse to drive your car because sometimes people get killed. This is emotional, face it.

    I also don't buy it when people claim their objection to capital punishment is based on the inability of the state to do it right. In fact, my guess is that the more effective the state was at it, the less you would support it.

  14. "I'm sure that many, many people have been incarcerated wrongly, but I doubt that would lead you to a solution of eliminating jail time."

    Nobody is suggesting that we eliminate the justice system because it isn't 100% correct. The difference between depriving somebody of their liberty and depriving them of their life is a difference in kind, not a different in degree.

  15. Que sera sera.

  16. The same standard should be placed on our police and prosecutors. If an innocent person is sent to prison or executed through negligence, the employer of those individuals (the state) should have to pay compensation. If it can be shown that the police and/or prosecutor, or even the expert witnesses, ignored best standards (as it appears the fire investigators did in this case), those individuals need to be tried for false imprisonment and (at least in this case) manslaughter. Only by holding people accountable can you have any guarantee that such slipshod methods won't be repeated in the future.

    I think the personal accountability is the key. So what if the state has to pay up for the screwups? Higher taxes again. But put a few cops in jail for perjury and a prosecutor in the pen for withholding exculpatory evidence? Then it won't happen again.

    But we already have these laws on the books and the abuses continue.

  17. Did the state of Texas kill an innocent man? Of course they did. And they've no doubt killed other innocent men too. Because the system is not designed for justice, it's designed to kill people. It is designed to satisfy a public blood lust for vengence and its designed for politically ambitious prosecutors to move up to higher office. But it is not designed for justice, not when defendants are given incompetents and drunks as attorneys, not when medical examiners and so-called expert witnesses don't have a clue about their fields of study (as Reason has shown in the case of the Mississippi county coroners)and thus give tainted testimony. Not when most places in the country don't have the proper equipment for things like DNA tests. Nobody is interested in finding out who REALLY committed the crime, they just want to make sure the poor sucker they finger first gets convicted. That is the judicial system in a nutshell.

  18. "The difference between depriving somebody of their liberty and depriving them of their life is a difference in kind, not a different in degree."

    That's an argument FOR capital punishment since the difference between robbing someone and killing them is a not just a difference in degree.

    Life is prison could be worse punishment for many people including me, but it would still not be justice for murdering someone.

    I repeat it is not logical or reasoned to oppose capital punishment. It is not compassionate either.

  19. Type in the article:
    "So I've never much doubted that one ore more states have executed innocent people."

  20. bagho20,

    I don't think the eye for an eye logic works.
    If the right to life is inalienable, then it is not something the government should have the power to remove from you. Your actions may be heinous enough to deprive you of some aspects of your liberty (in order to prevent you infringing on other's rights), but I don't see a logical argument flowing from a rights based outlook that allows for the death penalty.

    But that's just me.

  21. If one's answer to the "how many innocents being executed is tolerable?" question is anything > 0, then no case in particular is going to change their mind.

    Unless, perhaps, the case in question is a young, attractive white girl.

    Appealing to the better nature of the masses is a waste of time. This is *precisely* why the state should not have power over life and death.

  22. "That's an argument FOR capital punishment since the difference between robbing someone and killing them is a not just a difference in degree."

    You can't just repeat a phrase and expect it to have meaning. Your argument was that capital punishment is good even if it occasionally kills innocent people. However, with respect to innocent people, there is NO difference in robbing and killing a person, because they did neither.

  23. For me the real story is not simply that Willingham might have been innocent, or at least not convict-able, but that it seems very clear that people like Perry and the parole board were utterly derelict in/disdainful of their duty.

    If that led to the state killing someone, it's more than simply a case of "uh oh, we should really get some more safeguards in the system." What use are safeguards when people are simply free to ignore them, without any punishment? If an ordinary citizen neglected their duty in such a way that it predictably caused the death of an innocent person, they'd be charged with criminally negligent homicide.

    But we now seem to have a made a special case for powerful, well connected people: you see, if they were to ever face investigation or responsibility for their actions and the harm they caused it might have a chilling effect on their ability to make tough decisions.

  24. While I'd probably support a moratorium on the death penalty until the system is reformed, I pretty much only support it in practice for those rare criminals who, with 100% certainty, committed crimes so brutal for whom the potential danger to society of a fluke prison escape and continued killing is so high that it exceeds the heavy moral cost of executing them. This would be reserved to a very small handful of criminals (for instance, the worst, most unrepentant serial killers), and this case would not be one of them in the first place - even if he was guilty. So it only highlights the need for a moratorium to enact major reform and a far more selective application of the death penalty, if applied at all. The Supreme Court would be the most likely avenue leading to a moratorium stemming from this case, although let us not forget that both the president and the leading party are generally more anti-death penalty as well so could act upon this.

  25. If not, how many more cases of an executed innocent person would it take to make you change your mind?

    I think they call that a horizontal asymptote.

  26. Texas is the reason!

  27. Does Willingham's case make you rethink your position?

    Not really. It makes me think that the death penalty ought to be applied to the people who knew there were good reasons to doubt Willingham's guilt but went ahead and railroaded him to the death chamber anyway.

  28. I have always supported the Death Penalty until a Federal Jury Convicted Terry Nichols in the Oklahoma Bombing in which he was convicted for conspiring to kill 187 PEOPLE.

    Yet, the SAME JURY, decided that he did NOT deserve the DEATH PENALTY because he FOUND JESUS after being caught and repented.

    I Terry Nichols doesn't deserve it...and really don't know who does.

  29. "If the right to life is inalienable, then it is not something the government should have the power to remove from you."

    Life is not the only " inalienable right. The state has the right to take all you rights, inalienable or not, with due process. Otherwise, it would be virtually impossible to punish any crime. In fact what you nearly always lose when convicted is your "inalienable rights" except one; the right to due process.

    I find it a little strange that people think it is compassionate to lock someone up for 50 years with the most disgusting people in society to be repeatedly gang raped, beaten and degraded with no way out and only death to look forward to, which you then deny them. 50 years of torture = compassion.

  30. I'm not opposed to the death penalty per se but there needs to be some refinements.
    1. Any prosecutorial misconduct on a guilty verdict and the prosecutor is put to death.
    2. No one using a public defender can receive the death penalty.

  31. Cameron Todd Willingham was a bad man who found himself in the crosshairs of a bunch of incompetent men. The system needs to be fixed, but I shed no tears for Mr. Willingham.

  32. man was executed for the wrong crime

    My pet theory is that he didn't start the fire, but he wasn't sad to see it blaze, either.

    So, while I oppose the death penalty because I think the State is incompetent, this is not exactly the case I have in mind.

  33. Im going to take a view that seems at odds (but isnt) with my response to MNG's quote that was requoted above.

    For those that didnt see it, I responded that what MNG said was the most evil thing I have ever seen posted on this board.

    Does the fact that many innocent people have been jailed mean that we should not use jail anymore? "Ah," you say, "but the death penalty isnt reversible, while an innocent man jailed can be released." This is true, but try giving him those years back. Its only a matter of scale.

    I dont have a problem with getting rid of the death penalty. I dont have a problem with getting rid of it, temporarily, while incompetence abounds in the judicial system. Im not sure man can be competent enough to have a death penalty. But, it is intentional imprisoning/killing the innocent that is evil.

    No matter what system we have, errors will be made. Correcting them should be a priority, but they can only be corrected to a degree. If an innocent man is given a life sentence and dies in jail 40 years later, and 5 years after that it is discovered he was innocent, is that any different than giving him the chair?

  34. I find it a little strange that people think it is compassionate to lock someone up for 50 years with the most disgusting people in society to be repeatedly gang raped, beaten and degraded with no way out and only death to look forward to, which you then deny them. 50 years of torture = compassion.

    Well, if you want to talk about taking a "logical and reasoned" approach, an approach that used reason would start with a blank piece of paper and ask the question, "When can the state employ violence and why?"

    The state possesses the right to employ violence because individuals have delegated their right to self-defense to it.

    Once a criminal has been caught and incarcerated, self-defense no longer is an issue. The state should not possess the right to kill a captured criminal any more than you as an individual should possess the right to kill a burglar you catch if the guy surrenders and gives up to you and agrees to wait with you until the cops come.

  35. But we now seem to have a made a special case for powerful, well connected people: you see, if they were to ever face investigation or responsibility for their actions and the harm they caused it might have a chilling effect on their ability to make tough decisions.

    Well said, Drew. "Chilling effect", indeed. Ability to make (good) tough decisions -- while facing investigation and responsibility -- should be how folks get "powerful" in the first place.

  36. Can anyone explain how Willingham's death is quantitatively different from Pedro Navarro-Oregon's death?

  37. Neither the State of Texas, prosecutors, judges, most of the population of the United States, especially evangelical Christians, give a fuck that innocent people are executed.

  38. "Chainsaws and Presidents - Texas kills."
    - Venom Lords

  39. If the right to life is inalienable, then it is not something the government should have the power to remove from you.

    So then the government should be disarmed?

    But we now seem to have a made a special case for powerful, well connected people: you see, if they were to ever face investigation or responsibility for their actions and the harm they caused it might have a chilling effect on their ability to make tough decisions.

    There is always vigilante justice.

  40. Fluffy,

    You said that much better than I.
    I just don't get how people move from "inalienable rights" to support for the death penalty.

    Life is not the only " inalienable right.

    It may, however, be the one that is closest to being universally accepted as inalienable. It is certainly the logical foundation for the very idea of inalienable rights.

  41. WE ARE ALL BORN WITH ORIGINAL SIN.

    WHICH IS A CAPITAL CRIME.

  42. I think death is a fair punishment for deliberate and premeditated murder, but it's also such an irrevocable step that even if the process were administered with total fairness and impartiality, I'd still support it only when there's 100% certainty of the guilt of the accused. It should be like the requirements for treason - two independent eyewitness accounts or an open confession without the "support" of police questioning.

  43. "If an innocent man is given a life sentence and dies in jail 40 years later, and 5 years after that it is discovered he was innocent, is that any different than giving him the chair?"

    Exactly. We should concentrate on eliminating the errors not making them less damaging which really can not be done. It is unlikely that convictions will ever be 100% correct, so we need to decide if we will have capital punishment or just lifelong torture.

    "The state possesses the right to employ violence because individuals have delegated their right to self-defense to it."

    We also delegate to the state the function of justice and deterrence in addition to self-defense. The proof is that we punish people who are not any threat all the time. For example: Bernie Maddof will never be able to repeat his crimes, but the state must still punish him for the sake of justice and deterrence.

  44. M.E.,
    So then the government should be disarmed?

    No, but they should not have the power to use force offensively, only defensively. See Fluffy above.

  45. "I also don't buy it when people claim their objection to capital punishment is based on the inability of the state to do it right. In fact, my guess is that the more effective the state was at it, the less you would support it."

    Don't buy it all you want, but in my case, it's quite true. I have no moral qualms whatsoever about, say, a serial rapist being put to death.

    But our justice system is just too filled with perverse incentives to even imagine that they could 'get it right' anything like 100 percent of the time.

    And yes, I would much prefer a system that let some guilty people get off free than one where there was a good chance that public servants would be killing the innocent.

  46. For example: Bernie Maddof will never be able to repeat his crimes, but the state must still punish him for the sake of justice and deterrence.

    The functions of justice and deterrence are not served by the death penalty.


  47. The functions of justice and deterrence are not served by the death penalty.

    Huh? You can argue that no crime deserves death, but that isnt settled. So, justice can be served by the death penalty, if the punishment is fitting for the crime. And at that point, if it also provided a deterrence, good for it. And I see no reason death wouldnt be a deterrence.

  48. No, but they should not have the power to use force offensively, only defensively. See Fluffy above.

    Have any of you heard of Pedro Navarro-Oregon?

  49. I find it a little strange that people think it is compassionate to lock someone up for 50 years with the most disgusting people in society to be repeatedly gang raped, beaten and degraded with no way out and only death to look forward to, which you then deny them."

    I don't think compassionate is the right word, but I suspect that if I were wrongly convicted I would strongly prefer the prison sentence with its horrible possibilities, but still some slight hope of exoneration, to execution. The will to live in the face of great suffering is very strong. If this weren't the case, the entire race would have offed itself a long time ago.

  50. I find it a little strange that people think it is compassionate to lock someone up for 50 years with the most disgusting people in society to be repeatedly gang raped, beaten and degraded with no way out and only death to look forward to, which you then deny them. 50 years of torture = compassion.

    It requires this kind of hyperbole to argue that the death penalty is not cruel. While prisons are hardly pleasant places, and while the number of violent incidents are unacceptably high, you shouldn't base your view of them on Hollywood B movies. Most prisoners suffer more from boredom and humiliation than from actual violence.

    When you talk about reforming the system, making prisons a place where you are relatively safe from the other prisoners should be a priority. One of the reasons that prisons should be reserved for those who commit violent crimes against others. Non-violent criminals can be punished in other ways.

  51. robc,

    I guess death deters the person killed, but it certainly is not an effective means of preventing others.

    As for the justice issue...well, that is certainly debatable (hence my stating an opinion on the matter), but I don't buy into the "two wrongs = a right" view required to see the death penalty as justice.

  52. "The functions of justice and deterrence are not served by the death penalty."

    Perhaps, but they are even less served by not using it.

    Dead men never kill again. And nothing is less just than to when a life stolen does not cost the thief his.

    Having had my brother murdered by a career criminal who eventually got released again and never repented, I have a different opinion about justice and it is an opinion.

  53. I don't buy into the "two wrongs = a right" view

    You are assuming that killing someone as part of a justice system is wrong. It may or may not be. I also dont buy into "two wrongs = right", but that doesnt necessarily apply in the case of the death penalty.

    Killing another human isnt necessarily wrong, I can think of 3 cases where it possible isnt:

    1. Defense (of self or other)
    2. War (although this is probably a subset of #1)
    3. Justice (I guess it could be argued this is a subset of #1 too)

  54. robc,

    I think you can collapse your three safely into your number one.

    If you don't then you end up with support for offensive wars, and a revenge-based justice system. IMHO, neither of those are desirable.

  55. If not, how many more cases of an executed innocent person would it take to make you change your mind?

    Oh, at least a few more.

    I'm not a big fan of the State killing anyone. However, I'm even less of a fan of being able to kill a few people and then getting room and board paid for. That seems twisted.

  56. I'm for the death penalty in principle, but if the state is going to kill someone, I want certainty. Because of that, I would probably reserve it for politicians. Castro, Chavez, Mugabe, Milosevic? Kill em.

    -jcr

  57. We also delegate to the state the function of justice and deterrence in addition to self-defense. The proof is that we punish people who are not any threat all the time. For example: Bernie Maddof will never be able to repeat his crimes, but the state must still punish him for the sake of justice and deterrence.

    Who says Bernie Madoff is no threat?

    Given his decades of law-breaking, it was reasonable for us to assume that he would continue to break laws until he was hunted down and incarcerated.

    I think the "logic of the pentitentiary" is that the state has the right to imprison you to protect the citizenry from your depradations once you demonstrate that you're willing to commit crimes - but that it lets you out after you've had a few years [or what have you] to think about what you've done and hopefully not do it again, and the more minor the offense the less time you need to do that thinking.

    I understand that you might want to think of that time as restorative justice of some kind ["You hurt me, therefore you will repay that by suffering yourself for a set period of time!"] but if we really thought that, we'd still use stocks. Actually, justice systems that apply the principle of restorative justice not just to civil law but also to criminal law tend to end up with criminal justice systems that involve physical punishments and weregild, both of which we like to tell ourselves we've moved beyond.

  58. bagoh20,

    Sorry to hear about your brother.

    Clearly, justice is not fully served when you release an unrepentant killer. And, if the man went on to commit more crimes then deterrence was also not served. In my opinion, however, killing the man would not have served justice either. Having the state take on the functions of justice and deterrence is wise, in part, because an impartial arbiter of justice is less likely to commit a second wrong due to emotional rather than rational assessment of the situation. But once you give the state the power to dole out punishments, it is unwise to include the power to kill, it seems to me.

  59. I see the death penalty as being like healthcare 'rationing'. Since someone will be denied care or life at some point (we all die), why worry about a government agency making that decision for us. Rational government bureaucrats are much better decisionmakers than random chance, right?

  60. If you don't then you end up with support for offensive wars, and a revenge-based justice system. IMHO, neither of those are desirable.

    What is wrong with revenge?

  61. But once you give the state the power to dole out punishments, it is unwise to include the power to kill, it seems to me.

    It is unwiser to leave the power to kill at the hands of vigilante lynch mobs.

  62. In general, I am in favor of the DP, although not in the state of Illinois as it has proved itself incompetent in such matters.

    In general, I think a lot of people would settle for life imprisonment if life imprisonment actually meant the prisoner would stay behind bars for his entire life, not like that Libyan terrorist who got released in Scotland (yeah, I know it is a different country, but the principle applies) or the fact that Charles Manson is elligle for parole every couple of years.

    Life imprisonment should mean imprisonment for life and murderes should be in jail for life at the very least.

  63. Bernie Madoff does NOT deserve the DEATH PENALTY. He hasn't found religion ... yet.

  64. I am opposed to the DP on the principle that to me any human life is of value if a person can think and talk. Even the most heinous criminals can provide something, a knowledge of something past at least.

    The argument of self defense doesn't stand as a person incarcerated can no longer do you any more harm.

  65. M.E.,

    What is wrong with revenge?

    It seems to me to be the antithesis of justice.

    Imagine a rights-based ethical system that allows for you to act against the rights of others for

    1) defense
    2) revenge

    It seems this system would capriciously take away the "inalienable" from "inalienable rights."

  66. M.E.,

    It is unwiser to leave the power to kill at the hands of vigilante lynch mobs.

    So, you think the state should take on the (justifiable?) function of lynching? Is that your reason for supporting the death penalty? It is because I don't think the state should take on that function that I oppose the idea.

  67. well JB, lets just hope you're not the next "teachable moment"...

  68. Dead men never kill again. And nothing is less just than to when a life stolen does not cost the thief his.

    One thing is less just, and that is the wrongful execution of an innocent man.

  69. A few years ago, a whole bunch of celebrities campaigned for freeing Mumia Abu-Jamal, or at least getting his conviction overturned.

    Why did they not place even a fifth of their effort towards freeing Cameron Todd Willingham?

    It is because I don't think the state should take on that function that I oppose the idea.

    Then who should take on that function?

  70. It's fire marshal: one L. The surname has two (dunno why).

  71. Another point about the "life in prison is less compassionate" argument for the death penalty.

    There is nothing, really, stopping a prisoner from taking the matter into their own hands. If death is preferable to imprisonment, then let the prisoner, whose right to life is theirs to do with as they wish, decide that and choose which punishment they prefer. That is what inalienable means...you don't get to decide if I have a right to live, no matter who you are.

    This is the reason that only defense can be used as a justification for killing. If I am trying to decide for someone else that they do not have the right to live, then whatever force is necessary to preserve their inalienable right to life is justified. Once that threat is gone, however, there is no justification for alienating someone from their life.

  72. M.E.,

    Then who should take on that function?

    No one.

  73. I've always favored restitution to victims and/or service to society in the context of life-imprisonment. You can always let someone go and offer recompense for the mistake. You can't bring back a wrongly executed person. Plus, many of the most heinous crimes are committed by personalities and for reasons that we should study at length. I would give a lot, for example, to really UNDERSTAND the psychology of someone like Timothy McVeigh and his reasons for the OKC bombing. But we'll never have that chance.

    In my opinion, the death penalty is appropriate only when a killer can't be contained. If a criminal is determined to escape and kill again -- especially if he or she succeeds at this -- then society must protect itself. Otherwise, keep the person in jail, working to defray costs of incarceration and to compensate any eligible victims or survivors.

  74. Careful readers will note that my position means that you do not have the right to take someone's life to defend stuff.

    I realize that many here find it justifiable to kill a thief to prevent the theft. I don't.

  75. NM: do you believe that suicide should be legal too? assisted or otherwise?

  76. ransom147,

    Of course.

  77. shrugs and moves to Texas....

  78. """Then who should take on that function?"""

    If anyone, it should be a trusted entity. So that takes government off the table.

  79. The problem with having a general rule that people can't use force in defense of property is that it's hard to know just why that guy broke into your house in the middle of the night.

  80. Actually, justice systems that apply the principle of restorative justice not just to civil law but also to criminal law tend to end up with criminal justice systems that involve physical punishments and weregild, both of which we like to tell ourselves we've moved beyond.

    So I'm going to be the only guy here to go on record as being in support of weregild? Okay, I'll shut up now.

  81. NM:

    ok... good.

  82. Pro Lib,

    Not sure I agree.
    You have lots of choices in any situation.
    Usually, leaving is one of them, even if you are on you own property. If you think that you are in danger, you can defend yourself. If you think your TV is in danger, you can defend your TV. However, the level of force justified in one situation is much different than the other.

  83. I wonder if there is any correlation between a country's average life expectancy and support/opposition for the death penalty. One might predict that as life (potentially) lasts longer and longer, people might become more hesitant to end it.

  84. I'd rather have a TV that could defend itself.

  85. I'd rather have a TV that could defend itself.

    Right up until it decided displaying the scat porn was intolerable and decided to take you out in self-defense.

  86. Pro Lib,

    To elaborate a bit.
    When defending life, the amount of force used should be sufficient to save the life. This can include killing the aggressor if necessary, but the goal should be to prevent the aggressor from killing, not to kill the aggressor. Use of deadly force to defend property seems to overstep. Now, it is true, that while defending your property, the aggressor may move from infringing your property rights to endangering your life. Once that move has been made the situation has changed and the defense of life rules kick in.

    Context always matters, but if you have a blanket rule that says you can defend property with deadly force, you end up with a system that is likely to justify the arbitrary use of deadly force.

  87. We shall fight the oppressors for your right to have an armed TV, brother.

  88. Right up until it decided displaying the scat porn was intolerable and decided to take you out in self-defense.

    I didn't say I wanted a laptop computer that could defend itself.

  89. I would settle for a less offensive TV.

  90. NM,

    I seem to recall a general rule in the common law that if someone uses force to break into your home, your use of potentially lethal force can be reasonable. After all, the burglar hasn't called his intentions in ahead. In other words, lethal force to protect your property isn't generally protected, but lethal force to protect you and your family is. Obviously, blowing away a guy you've already subdued or who is running away would be a problem. Unless you're a cop or something.

    The shotgun-trap cases (where people got blasted automatically by traps set up on the property) were decided on this premise. No people were in danger; therefore, it's an unreasonable amount of force.

  91. I seem to recall a general rule in the common law that if someone uses force to break into your home, your use of potentially lethal force can be reasonable.

    It's the same basis used for castle doctrine laws. The idea is that if someone enters your home while people are there, a "hot" burglary, there is a reasonable expectation that they intend physical harm. It's also the same as why it's illegal to shoot someone who's trying to steal your car, but depending on the jurisdiction it's OK to shoot a carjacker.

  92. Armed TV. A little to Videodrome'd and blinged for my tastes.

  93. Context always matters, but if you have a blanket rule that says you can defend property with deadly force, you end up with a system that is likely to justify the arbitrary use of deadly force.

    From a practical perspective, once you allow the use of force, there's not a lot of distinction you can make. What's deadly as opposed to not deadly? You can hit the burglar with your fist, but a golf club is bad? Do you expect our theoretical homeowner to determine the fine legal nuances at 2 in the morning?

    You also empower the large and criminal against the small and weak once you take deadly force off the table. If I decide to take something from the average female there's not much she can do about it without resorting to some level of force that may kill me.

  94. NM:

    it almost sounds like you support a "duty to retreat".

  95. What's the problem? Karma balances the books over enough time.

  96. Ransom147,

    No, I don't.

    ProLib, Tomcat, T,

    The points you raise are what have led me to an idea that rights, whatever they are, really adhere not to individuals, but to actions IN CONTEXT. So, general principles can help guide determinations about the right/wrong of a particular action in context, but the general principles should be limited to those where it is highly unlikely that the exception applies.

    So, "I shot the guy to protect my TV" is not typically gonna be justified, but "I was afraid for my life, so I shot him" in a context where that fear is reasonable will be justified. In the example I give, as soon as you move to defend your property, the offender has a choice...they can escalate the violence, meaning that the interaction is no longer just about the property, now it is about your bodily integrity. Or, they can relinquish the property they are trying to steal ( or leave the premises, whatever). If they do that, you have no right to use deadly force. But deadly force is justified based on their threat to your bodily integrity, not their threat to your property.

  97. SugarFree,

    Ever play Smash TV?

  98. I love it.

  99. just checkin

  100. Er, you guys do realize that the actual situations in which a general policy of executing innocent persons would pass a utilitarian calculus would be very, very, very low in number, right?

    Most major utilitarian reformers (Beccaria, Bentham, etc) argued, way before its time, to get rid of the death penalty. Most hard-ons for the death penalty are deontologists, retributionist "justice" types. So, FAIL.

  101. NM:

    Sorry, but I'm not going to chat with the guy to determine his intentions. He entered my home while I'm there. I'm going to assume hostile intentions and act accordingly.

    Maybe he only wanted my TV. Sucks to be him at that point.

  102. Me, too.

    I'd buy that for a dollar!

  103. The shorter version of that.

    You have a right to use force to get your property back, but the thief doesn't have the right to use force to keep it from you.

    That said, you don't have a right to use deadly force for the sole purpose of getting your property back.

  104. If it were certain to save, say, even two lives, what kind of moral monster would not execute a single innocent person? If you value human life, that is. Think Queen v. Dudley Stevens.

  105. If you are not willing to execute a murderer, then you do not sufficiently value the victim's life. The worse the offense the more severe the punishment. If murder just gets you the same or a few extra years over kidnapping or multiple armed robberies then you value the loss of that inalienable life very little.

    If two wrongs don't make a right then why punish anyone for anything. I should be able to rob a bank as long as I get enough to live on forever and promise not to do it again.

  106. "Big money! Big Prizes!"

    You know, you can get it on Xbox marketplace. It plays well with the dual thumb controllers.

  107. Sorry, but I'm not going to chat with the guy to determine his intentions. He entered my home while I'm there. I'm going to assume hostile intentions and act accordingly.

    Maybe he only wanted my TV. Sucks to be him at that point.

    And depending on the specifics of how that all played out, it is likely you could justify your actions. But, say, shooting the guy as he is bolting from your premises, not sure that holds water. Context matters.

  108. That's the three guys in the open boat case, right?

  109. If you are not willing to execute a murderer, then you do not sufficiently value the victim's life.

    I disagree. It is perhaps the worst possible crime, and deserves the most extreme punishment. I just don't include execution as one of the options to be considered for punishment. I am against torturing murders as well.

  110. If somebody looks like he might harm my family, I have no problem killing him. And I'm not much for violence.

  111. If two wrongs don't make a right then why punish anyone for anything. I should be able to rob a bank as long as I get enough to live on forever and promise not to do it again.

    Are you arguing for a slippery slope from no-death penalty to no consequences for any action? I don't think the slope is that slippery.

  112. MNG:

    that's pretty twisted.

  113. And depending on the specifics of how that all played out, it is likely you could justify your actions. But, say, shooting the guy as he is bolting from your premises, not sure that holds water. Context matters.

    Not really, since you seem to be arguing that context dictates right and wrong absent the law. However, most castle doctrine laws are pretty clear that a suspect bolting isn't grounds to shoot. Now, perhaps I'm misunderstanding your position on this, but the castle doctrine laws in many states (but particularly Georgia, which I'm most familiar with).

  114. "I shot the guy to protect my TV" is not typically gonna be justified

    That's *explicitly* legal. After dark. In Texas...

  115. SugarFree,

    Really? Awesome. I must acquire it.

  116. Prolib,

    Pro Libertate | September 8, 2009, 2:36pm | #
    If somebody looks like he might harm my family, I have no problem killing him. And I'm not much for violence.

    I concur. I have no problem with the use of deadly force to protect life.

  117. Of course, I get my philosophy for when to use force from the same place I get all of my moral philosophies--from AC/DC:

    Shoot to thrill, play to kill.
    Too many women with too many pills.
    Shoot to thrill, play to kill.
    I got my gun at the ready, gonna fire at will.

    Yeah.

    ?

  118. Tomcat1066,

    True, most castle laws are working with something similar to the principles I am trying to express. They provide you with a right to use deadly force based on the idea that someone entering your property may be reasonably assumed to be a threat to your person(s). They do not justify deadly force, as I understand them, based on the threat to your property. That is why they do not allow for you to shoot a fleeing trespasser.

    That said, I would argue, that, for instance, someone who is in a safe location with no reasonable fear that the intruder could harm them is not justified in killing the intruder without giving that intruder the chance to leave (you can't sit in your second story bedroom and use your sniper rifle to shoot the guy who just hopped into your yard, say, without yelling down a warning and giving him a reasonable chance to retreat). The reason we have trials with juries is due to the difficulty of deciding how the action plays out in context. But if the laws are written to justify deadly force to protect property (rather than life) you end up with justification for shooting the kid who hopped the fence looking for his homerun ball during a late night baseball game.

  119. NM:

    what about in defense of livestock?

  120. fishbane | September 8, 2009, 10:35am | #

    I do think, abstractly, that some deeds can morally call for death, but don't trust the state to competently and impartially dole it out.

    That sums up my position pretty well.

  121. Ransom147,
    Livestock is property.
    Why would there be a distinction?

    Or are you talking about defending the life of the livestock? Or, a pet even...hmmm... that seems a gray area. Perhaps animals deserve a higher standard of protection than inanimate objects.

  122. What if you're married to the livestock?

  123. jackass

  124. The law is clear: If the animal has a name, you can use lethal force to defend it. If no name, then you can't.

  125. """So, "I shot the guy to protect my TV" is not typically gonna be justified, but "I was afraid for my life, so I shot him" in a context where that fear is reasonable will be justified."""

    Right. Which is way you ALWAYS tell the cops you were fearing for your life. That's what the cops do to jusify shooting a little dog. Take from the page the cops use, even if it looks totally incorrect, say it anyway.

  126. But if the laws are written to justify deadly force to protect property (rather than life) you end up with justification for shooting the kid who hopped the fence looking for his homerun ball during a late night baseball game.

    Perfectly legal in Texas. Well, questionably legal, anyway. Make a claim of criminal mischief and you're good. The "hours of darkness" let you shoot people for all kinds of reasons.

  127. works for me Pro L; i've got time to name lucky the cow while the cops are on the way...

  128. Aye, there's the rub: Cops like to shoot pets.

  129. If it were certain to save, say, even two lives, what kind of moral monster would not execute a single innocent person? If you value human life, that is.

    Would you kill your mother to save the lives of two strangers? Why or why not?

  130. T,

    As a New Mexican, I don't use Texas as a guide for how things "should" be done. We tend to look to Texas for how not to do things.

  131. NM:

    yeah santa fe's living wage boondoggle is remarkable policy. just sayin'.

  132. As a New Mexican, I don't use Texas as a guide for how things "should" be done. We tend to look to Texas for how not to do things.

    Rank foolishness, NM, rank foolishness. We have many, many right answers around here.

    I'll admit the criminal justice system may not be one of them.

  133. ransom147,

    It isn't a perfect system, but it is a good place to start.

    T,
    I am sure there are many right answers in Texas, but I go with the odds. But, as I said above, context matters. BBQ, for instance, is a domain that the Texans have figured out.

  134. I am sure there are many right answers in Texas, but I go with the odds. But, as I said above, context matters. BBQ, for instance, is a domain that the Texans have figured out.

    We also have a pretty good handle on how to not destroy an economy. 🙂

  135. NM: it's a good place to start destroying the middle class and segregating cities. yes, that's true.

  136. Barbecue? That's where you'd be wrong. Texans barbecue beef. That's an abomination before God.

  137. Joe M,

    Well, that is arguable.
    GWB is a Texan, after all.
    And George senior...
    And Johnson...

    Bringing the wisdom of Texas to the country.
    ;^)

  138. I practice ecumenical BBQism. Lo, all the smoked and grilled meats are good and should be in my belly.

  139. Ransom147,

    I meant "using Texas as a guide for how not to do things" isn't a perfect system, but it is a good place to start. NOT, "Santa Fe's living wage is not a perfect system, but it is a good place to start."

  140. Sugarfree,

    Indeed. But I am with the Texans on the question of sauce. If you need sauce on the meat, you didn't BBQ the meat correctly.

    That said, a good sauce can save the worst meat.

    Context matters.

  141. NM:

    oops. gotcha.

  142. As a New Mexican, I don't use Texas as a guide for how things "should" be done. We tend to look to Texas for how not to do things.

    As Texans, we say pretty much the same thing about New Mexico. When we think about New Mexico at all.

    Lo, all the smoked and grilled meats are good and should be in my belly.

    Yea, verily, SugarFree.

  143. There is no barbecue but pork.

  144. May to come to know love in your heart, brother.

  145. RC Dean,

    When we think about New Mexico at all.

    Why is it then ya'll spend so much damned time in NM? I mean, sure, you ain't got nothing to ski on, but for all the ignoring ya'll're doin' you'd think there'd be fewer of ya on the roads in NM during tourist season. But I guess if I lived in Texas, I'd flee as often as possible...do the Texans also invade OK, and LA so frequently?

    =/;^)

  146. >>The will to live in the face of great suffering is very strong. If this weren't the case, the entire race would have offed itself a long time ago.

    Yup.

    >>Most prisoners suffer more from boredom and humiliation than from actual violence.

    Yup.

    >>Don't buy it all you want, but in my case, it's quite true. I have no moral qualms whatsoever about, say, a serial rapist being put to death.

    Yup. In fact, my lack of support for the death penalty is reluctant, because there are some people who I think deserve it.

  147. SF has the right of it, ProL. It's all good. Pork, beef, duck, chicken... Slap it over a smoky fire and I'll eat it.

    I'm currently figuring out how to cheat on my beef brisket for tailgating. I think my homemade sous vide rig may be the ticket for that one.

  148. The endless list of things that SugarFree will cram into his maw is irrelevant to the question of whether using beef to create barbecue is an abomination.

    Sinners!

  149. The endless list of things that SugarFree will cram into his maw is irrelevant to the question of whether using beef to create barbecue is an abomination.

    No. Trying to barbecue tofu is an abomination in the eyes of God and man. Beef? It's what's for dinner.

  150. I bbq'ed a lamb breast recently. It was delicious.
    And cheap.
    Though I don't know that it would be the easiest cut to serve to company.

  151. MNG, why did you disappear right after literally advocating the murder of innocents for the greater good? I was ready to get into the mix on that.

  152. Well, that is arguable.
    GWB is a Texan, after all.
    And George senior...
    And Johnson...

    Bringing the wisdom of Texas to the country.

    Yeah, we got rid of them to avoid localizing the damage. Clever, no?

  153. highnumber,

    You're exempted from God's wrath since you have a reason for eschewing the pork. But of the omnivores, there is no forgiveness for barbecuing the non-porcine.

    This is not to say that one can't eat beef. Steak is okay. So is beef stew. And, of course, beef parts can be found in the haggis.

  154. But of the omnivores, there is no forgiveness for barbecuing the non-porcine.

    I don't need forgiveness, I need more napkins.

  155. Prolib: If you insist, you can retain the term BBQ soley for pork products. Just don't bother telling me in what manner I may satisfy my instatiable hunger for large hunks of flesh cooked low and slow with smoke.

    And anyone who can use the terms "steak" and "okay" in the same sentence is a barbarian.

  156. Meh. You'll all be purged with the Great Pig Lord of the Barbecue comes down to rule the Earth!

    Ingrates.

  157. You know, come to think of it, I haven't had a steak in a good while. My wife's a vegetarian (well, sort of--she'll eat fish and turkey(!?)), and I tend to get seafood when we eat out.

    The last really good steak I had was in Dallas a few years ago, at one of those restaurants where you can cook it yourself. Needless to say, homey don't play that--I let them prepare it for me.

  158. Pro Lib,

    Love for the pork does not preclude love for the other creations of the gods of BBQ.

    As a great one said: "The world of meat is like unto a rose garden and the various muscles, tongues, and organs are like unto contrasting flowers. The diversity of colors in a rose-garden adds to the charm and beauty of the scene as variety enhances unity. Likewise the variety of meats adds to the deliciousness and perfection of the meal as variety enhances unity."

    Or something...

  159. Can you barbecue a haggis? I've heard of fried haggis, and, of course, a traditional haggis is boiled to a deep, rich gray.

  160. Ummm the BBQ thing is easy to answer. Colrado has the best cause we have the best beef (arguable the best pork BBQ is Missouri). Texas Longhorn is nasty and should only be fed to dogs. Colorado Angus is the way to go.

    BEEF! It's what's for dinner

  161. Colrado has the best cause we have the best beef

    That would mean that Japan has the best BBQ beef, but I am pretty sure that is not true.

    http://en.wikipedia.org/wiki/Wagyu

  162. The problem with executing an innocent man is that the very first thing guaranteed by our Constitution is the right to "life, liberty, and the pursuit of happiness". The only reason some state supreme courts have upheld the death penalty in their states is their belief that our modern judicial system fully vets these death penalty cases such that it would be virtually impossible to wrongfully execute an innocent man. And yet the execution of an innocent man appears to be exactly what has happened in Texas. The conservative TX judicial system never likes to admit its mistakes even in the face of new and overwhelmingly convincing evidence. Take heed, TX is one of the last states in which you would want to be falsely accused of committing a crime. Once falsely convicted in a TX local court, your goose is pretty much cooked.

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