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Douthat on Capital Punishment

Russ Douthat of the New York Times has a badly argued post about the death penalty in the aftermath of the Troy Davis execution. First, he says that Davis should have been given a new trial. Obviously true. But then he says this:

I strongly agree with death penalty critics like Will Wilkinson that the general decline of capital punishment in the United States over the last three centuries is a sign of moral progress. (It’s a very good thing that we aren’t hanging people for property crimes any more.) But it seems to me that there’s a real moral difference between reducing the application of the death penalty because we’ve decided that certain uses are inherently unjust (which is what drove the decline of executions for most of American history) and eliminating its use entirely because we’ve decided that our legal system isn’t competent to implement it (which is part of what’s driving the decline of the death penalty at the moment). The former trend represented a genuine revolution in how we treated the guilty; the latter trend just reflects our anxieties about possibly executing the innocent.


Oh, is that all? It just reflects concern about executing the innocent? Just that little inconsequential thing is driving those of us who oppose the death penalty? Well yes, you’re right. I don’t have a moral problem with putting a murderer to death, presuming we could have 100% certainty that they are guilty, but our broken system simply can’t assure that. The exoneration of nearly 300 people based on DNA evidence, which only exists in a tiny fraction of cases, proves that — ironically — beyond a reasonable doubt.

Then there’s this odd pragmatic argument:

And resolving those anxieties by substituting life-without-parole for capital punishment doesn’t seem like it will necessarily lead to more humane treatment for the millions of inmates whose guilt isn’t really in doubt. Or at least it doesn’t seem to have done so thus far: Even as the execution rate has dropped over the last decade,the number of inmates serving life-without-parole sentences has gone up and up. This seems to bear out my column’s suggestion that eliminating the death penalty can be a form of moral evasion rather than moral progress: A way to feel better about our current system’s many flaws, even as we throw more and more people into laboratories of cruelty and throw away the key.

This is nonsense. Everyone that I know of who is an opponent of the death penalty is also a proponent of making a wide range of reforms necessary to make the criminal justice system more fair and just so it will convict fewer innocent people, period, regardless of what their sentence would be. I don’t just want to avoid sending innocent people to the gas chamber, I want to avoid sending them to jail even for a weekend.

The vast growth in our prison system and the increased use longer and harsher sentences is a result of the same mentality that fuels the use of the death penalty and the same lack of concern about fairness and justice. Doing away with the death penalty won’t reduce the impetus to improve the system, it is a key step in doing so.

Comments

  1. lofgren says

    This is similar to the post yesterday in that the argument seems to be “Well, we can’t make the system perfect, so why bother trying?” To be cynical, it strikes me as an argument based entirely on bloodthirst. If we make the system better, we can’t put as many people to death – so whatever you do, don’t ever make the system better.

  2. danielrudolph says

    He’s not talking about people’s views so much as their priorities. He’s not saying some people actually want to throw people in prison for life instead of executing them and give the process less scrutiny, so much as warning against getting complacent because the death penalty is fading.

  3. says

    My general stance: Once we’ve improved the justice system enough that we can have very high confidence in the verdicts, then we can argue about the pros and cons of the death penalty. But we don’t have a fair justice system, so the argument’s moot. We have a lot of reasons to believe that there are numerous innocent people on death row, and the best way to prevent their deaths is to get rid of the death penalty until the issue of false convictions is very thoroughly addressed.

    My stance on the death penalty is a logical extension of my desire for fair trials. The courts are making mistakes, and the death penalty compounds the unfairness by preventing innocent people from making effective appeals.

    What makes it disgusting is that a lot of politicians seem to enjoy rushing the process so they can claim to be “tough on crime” when they’re actually being tough on the innocent and letting the real criminals get away.

  4. lofgren says

    On rereading it, I see that danielrudolph is correct. In this column, at least, Douthat doesn’t explore any arguments for or against keeping the death penalty, just says that he thinks it should be kept. This is just a follow up to another column which I don’t care to read, so I will stay my moral outrage for the moment.

  5. jamessweet says

    I do suppose it’s worth reminding ourselves that an innocent person serving life in prison for a crime she didn’t commit is almost as shitty as executing an innocent person. This, of course, has little bearing on the pragmatic arguments against the death penalty that turn on revocability, and absolutely no bearing on ethical arguments against the death penalty. But I suppose it’s a worthwhile reminder that eliminating the death penalty is not a cure-all for erroneous convictions (not sure whoever said it was, but…)

  6. says

    I don’t have a moral problem with putting a murderer to death, presuming we could have 100% certainty that they are guilty, but our broken system simply can’t assure that.

    I think this argument is problematic. Obviously, we can never guarantee 100% certainty of guilt for any crime, even for speeding, but no one would say that we shouldn’t write speeding tickets as a result. At some point we must accept that for all valid punishments, there’s always a chance of punishing the innocent. And if the death penalty is a valid punishment, then there must be some degree of risk that is acceptable. Otherwise, we refrain from punishing anyone for anything lest there’s a miscarriage of justice (I think this is what Doubthat was trying to get at).

    For my part, I consider any policy that creates more human suffering than it alleviates to be immoral. Executing a murderer just for the sake of executing a murderer is therefore wrong. There has to be a good reason why executing him rather than imprisoning him actually makes the world a better place. There do not seem to be any compelling reasons for that, hence, I oppose the death penalty.

  7. Michael Heath says

    What’s sad about Mr. Douthat’s repeatedly lousy arguments is that he distinguishes himself as being one of the most coherent and cogent conservative advocates – on a relative basis within the conservative movement. There are clearly better conservative thinkers, but they and/or their positions all political parias to the conservative movement, e.g., Bruce Bartlett, Daniel Larison, and Conor Freidersdorf.

    It’s my opinion that the New York Times’ editors truly want a handful of great conservative columnists. However the fact there are none who also are influential with politically powerful conservatives is one of many data points which has me concluding that American conservatives are not capable of governing, but instead guarantee future catastrophe.

  8. tacitus says

    I saw a comment yesterday that sums up the typical man-on-the-street conservative attitude toward the death penalty perfectly. It was in response to the story about a Tulane law student who was revealed to be a convicted murderer:

    “In a perfect world, if you murder someone, you lose YOUR life as well.”

    In a perfect world?

  9. tacitus says

    The vast growth in our prison system and the increased use longer and harsher sentences is a result of the same mentality that fuels the use of the death penalty and the same lack of concern about fairness and justice. Doing away with the death penalty won’t reduce the impetus to improve the system, it is a key step in doing so.

    This. One only has to look at the company America keeps as active and enthusiastic practitioners of the death penalty to see why having the death penalty is bad for a society. It’s hard to find a tighter grouping of despots and failed states, except maybe countries that have executed minors in the last ten years — and the USA is still on that list too, though it will finally fall off it soon.

  10. katie says

    The vast growth of people in prison for life without parole has nothing to do with reluctance to use the death penalty. It has to do with implementation of poorly thought out “three strikes” laws, which see people imprisoned for life for repeated but relatively minor crimes, such as shop lifting or drug-dealing, which often aren’t violent at all. In fact, it’s a direct reflection of an increasingly retributive attitude toward incarceration, and the same one that makes a man with 234 state-sponsored executions under his belt (more than some petty dictators!) a serious contender for president. Douthat has once more earned my mental rearrangement of his name to “doubt that.”

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