The Texas Factor

I'd known that in the modern period just five states -- Texas, Virginia, Oklahoma, Florida, and Missouri -- were responsible for some huge proportion of total executions (see map) and that, in general, the death penalty is obviously being applied very differently from place to place. But Adam Liptak points out that in 2007, Texas alone accounted for 60 percent of total executions in the United States.

I used to be a death penalty proponent. And I still think, in principle, that it's not always wrong to execute people. But at the systems level, actually existing capital punishment in the United States is clearly a mess. Your odds of dying for your crime have much, much, much more to do with where you committed your crime and your socioeconomic status than anything about the nature of your crime. In theory, I think you could have a fair system that involved some number of executions. In practice, though, it barely seems doable and Harry Blackmun's conclusion that he had to simply refuse to "tinker with the machinery of death" seems more and more sensible to me as time goes on.

Comments

What is fair?

If people in Texas decide - commit a murder here and your chances of execution go way up - why is that unfair?

Taxes vary state to state, as do many laws. I hear people smear Bush about Texas' history of executions but having lived down there for several years I can testify that they have so many executions because the vast majority of Texans want to execute murderers

Posted by Josef | December 26, 2007 9:58 AM

"Your odds of dying for your crime have much, much, much more to do with where you committed your crime and your socioeconomic status than anything about the nature of your crime."

You left out your race and the race of your victim, which is a large factor in who gets executed.

Posted by justaguy | December 26, 2007 10:17 AM

And I still think, in principle, that it's not always wrong to execute people.

Enough already with the triangulation - aren't your credentials as a "reasonable" liberal solid enough?

Posted by McKingford | December 26, 2007 10:18 AM

Wouldn't that chart be more useful if it were normalized somehow?

A more populous state, all other things being equal, would have more executions than a less populous one.

What would be interesting would be a series of charts with residuals from a series of loglinear regressions. Have the raw counts. Then include population as a predictor. Then something about the actual murder rate. Then something about class. Then something about race. Then maybe something about land area (to start accounting for population density effects).

My guess is that OH, TX, PA and CA would start looking a lot less red. And some of the other southern and western states would look a lot more red ... so to speak ...

Posted by DAS | December 26, 2007 10:26 AM

McKing, has it ever occurred to you that it is possible to hold the middle position on something because that is actually your position? Accusations of bad faith are generally accompanied by argument or evidence.

Posted by nolaboyd | December 26, 2007 10:27 AM

McKingford, seriously -- shut the fuck up. Matt has an opinion. It may be well-formed, it may be stupid, whatever. But let's assume that this is actually his opinion, rather than go searching for ulterior motives to explain the fact that he doesn't agree with your pristine point of view.

Posted by Jim | December 26, 2007 10:28 AM

"Taxes vary state to state, as do many laws."

Contrary to what many conservatives think, taxing someone and killing them are two very different things.

Posted by John | December 26, 2007 10:29 AM

Harry Blackmun was a good man. Compare to Scalia, who evidently would prefer to return to a system of frontier justice ca 1790 in which execution is commonplace.

Posted by Aaron | December 26, 2007 10:30 AM

"vast majority of Texans want to execute murderers"

1) A disproportionate number of death penalty cases come out of Houston. They have had unusually harsh prosecutors, and a tradition of harsh prosecutions.

2) Texas simply is not different enough from Arkansas or Louisiana to account for the difference in executions, unless you have poll data to show me otherwise. Or if it is different, I would guess the differences have to do with its size & diversity rather than its ideology.

3)And I only have a quick intuition about the effect of size, looking also at California and New York. Perhaps in very large & diverse political bodies, a determined political minority can move particular issues to the extreme ends of the prevailing median of ideology. California is further to the left than many states, but not so far left that the different milage should be as easy to pass as they were.

Posted by bob mcmanus | December 26, 2007 10:34 AM

I too am curious why "where you committed your crime" is supposed to be some awful problem.

Often, "where you committed your crime" determines whether the actions you took are a crime at all - some things may be a crime in Texas and not in Maine. And some crimes may get you jail time in Texas and probation in Oregon. So what? The jurisdiction you commit an action in determines both whether the action is a criminal and, to the extent it is criminal, your range of punishment. People who don't want to be subject to the death penalty when they commite murder ought to move to Vermont.

Posted by Al | December 26, 2007 10:46 AM

Interesting map. But one thing it doesn't take into account is the relative population of the states in question.

I tried a quick and dirty population correction by dividing the number of executions (1977-2007) by the state's current number of House seats. Obviously, this is a pretty rough approximation, and will overstate the apparent scale of executions in states with relative population losses over the past 30 years and understate it in states with relative population gains during that time, but, eh, I just wanted a quick answer.

Taking this into account, things actually don't look that different at first. Four of the big five death penalty states are also in the top five per capita, although Missouri's lead over sixth-place Arkansas isn't that pronounced. However, where there are changes, the changes are pretty substantial.

Florida, for example, drops out of the top five death penalty states in a big way, coming in at #15 between Montana and Utah, and with the state execution rate closest to the national average. Joining the top five in place of Florida is Delaware, which ties Oklahoma for the highest per capita execution rate in the nation (Texas is a close third). Delaware is also the only blue state in the upper reaches of the list; the next highest, Maryland, has an execution rate scarcely a quarter of the national average. The Great Lakes execution belt (Illinois, Indiana, and Ohio) is not as significant as it looks on the map, with all three states comfortably below the national per capita average.

Posted by cminus | December 26, 2007 10:50 AM

The Atlantic Monthly had an excellent article in the late 1990s about the (mis)application of the death penalty in America. Matt, you might want to link to it: it's what convinced me that there was no point in trying to do the death penalty right this time.

Like you, I could intellectually justify a system that executed a small handful of murderers whose guilt was essentially inarguable. But that's not what we've gotten. Rather, we've gotten a system that seems to provide only a slightly higher standard of justice than the D.C. parking ticket system does, and has about as much in the way of procedural safeguards.

Posted by low-tech cyclist | December 26, 2007 10:53 AM

"In theory, I think you could have a fair system that involved some number of executions. In practice, though,"

Riiight.

In theory, Osama could surrender and marry Richard Perle (because, in theory, the next president will legalize same sex marriages). In practice, though, it barely seems doable.

In theory, the KKK could have some members who are not racists but merely concerned about the erosion of white folks' rights. But in practice, maybe not.

This is a sloppy variant of the argument from utility: IF the death penalty could be administered fairly, then why not? And like all utilitarian arguments of this sort, it fails because the issue is not utility but moral values. The reason to oppose the death penalty is not because *any* application of capital punishment is inherently unfair.

The reason to oppose the death penalty is that it is immoral. The state does not have the right to take the life of a human being. Ever. That assertion is simply an axiom - perhaps even the most crucial axiom - of a contemporary liberal society.

To use Matt's language, in theory, there is no justice to be found in the death penalty and therefore, the state has no right to practice it.

Posted by tristero | December 26, 2007 10:56 AM

Aside from the difficulties in applying the death penalty in a just manner, it's simply better not to give the state any authority to execute its own citizenry.

Posted by Tim | December 26, 2007 10:58 AM

That chart ruins years of Law & Order episodes. How can the DAs threaten people with death penalties if New York doesn't execute people? The standard twenty minute filler argument where everyone picks pro or con from a hat to choose a side is now gone.

Posted by Alex | December 26, 2007 11:02 AM

Since it seems I'm not the only person who wanted a per capita comparison, here's the numbers for executions (1977-2007)/House seats as of 2007:

1. Oklahoma, 14.0 (tie)
1. Delaware, 14.0 (tie)
3. Texas, 13.1
4. Virginia, 8.9
5. Missouri, 7.3
6. Arkansas, 6.8
7. South Carolina, 6.0 (tie)
7. Nevada, 6.0 (tie)
9. Alabama, 5.1
10. Louisiana, 3.9
11. Arizona, 3.8
12. North Carolina, 3.6
13. Georgia, 3.5
14. Montana, 3.0
15. Florida, 2.8
16. Utah, 2.0
17. Indiana, 1.8
18. Mississippi, 1.6
19. Ohio, 1.4
20. Nebraska, 1.0 (tie)
20. Wyoming, 1.0 (tie)
22. Maryland, 0.6
23. Illinois, 0.6 (due to rounding, not a tie)
24. Idaho, 0.5
25. Washington, 0.4
26. Oregon, 0.4 (due to rounding, not a tie)
27. Tennessee, 0.3 (tie)
27. Kentucky, 0.3 (tie)
27. New Mexico, 0.3 (tie)
30. California, 0.3 (due to rounding, not a tie)
31. Connecticut, 0.2 (tie)
31. Colorado, 0.2 (tie)
33. Pennsylvania, 0.1

Beyond this point, there have been no executions. The national average is 2.5.

Posted by cminus | December 26, 2007 11:07 AM

tristero:

"The reason to oppose the death penalty is that it is immoral. The state does not have the right to take the life of a human being. Ever. That assertion is simply an axiom - perhaps even the most crucial axiom - of a contemporary liberal society."

This is nonsense, a state without the power to kill is not likely to survive long.

Posted by James B. Shearer | December 26, 2007 11:14 AM

The number of executions was much higher when Bush was governor. There was a period during his governership where Texas averaged about an execution a week. It's come down a lot with Perry as governor.

Posted by Jose Padilla | December 26, 2007 11:16 AM

The biggest problem with the death penalty is the damage it does to the executioner (and, in a democracy, that's us). In order to execute someone, a person of normal sensibilities must harden themselves, shut off the flow of compassion a normal person feels towards someone who is suffering. And that's the damage. We harden ourselves. The next time it's easier, and naturally we then can widen the circle of people for whom we refuse mercy.

It's a choice for anger and revenge over forgiveness. We become accustomed to judging harshly, increasingly unable to cut anyone any slack for ever more trivial "crimes."

And, for those like me who need their enlightenment to be self-interested, the desirability of forgiveness is that, if you are generous in your judgment of others, then you develop a generous habit of mind about human foibles. Then, and here's the self-interest part, when we ourselves fuck up, we turn that generous mind on our own behavior and correct our faults with gentleness. Revenge and self-righteousness are inevitable roads to self-hatred. It's what they do. We forgive in order that we can forgive ourselves. We love in order that we may love ourselves. We combat tendencies of hate and bitterness in order that we can live happy, contented lives.

That's what's wrong with the death penalty.

Posted by Raenelle | December 26, 2007 11:22 AM

While a crude normalization is better than no normalization at all, using relatively current measures of population will artificially lower the execution rates of faster-growing states (such as Florida and Texas), and artificially raise the rates of the slower-growing states.

That said, one needs no normalization to see that a region (the south) that currently has 36% of the U.S. population, shouldn't have had 82% of its executions from Gary Gilmore to the present, or that even a populous state such as Texas shouldn't account for 37% of executions during that period all by itself.

Posted by low-tech cyclist | December 26, 2007 11:24 AM

A friend who is a liberal, former Federal prosecutor said he supported the death penalty for crimes committed by people already likely to be sentenced for life without parole - the prime example being killing witnesses (or police) who would testify against them.

It makes perfect sense to me - it is the only punishment available against folks already getting the maximum "regular" punishment of life without parole.

Posted by fasteddie | December 26, 2007 11:27 AM

The death penalty is a barbaric practice and has been outlawed in most civilized nations. Only countries like Iran and China still do it.

I'm curious as to how much of the change is due to grass roots groups like the Coalition to Abolition the Death Penalty and how much is due to elite judges and their reflection of the changing culture?

One of my favorite Bill Clinton moments was when he flew back to Arkansas to execute Rickey Ray Rector during the '92 Presidential campaign to seem "tough." Rector was a retarded black man who had no idea he was being put down. After eating his last meal, he asked if he could save his pie dessert for later.

Posted by Peter K. | December 26, 2007 11:40 AM

I guess I have two complaints.

Your odds of dying for your crime have much, much, much more to do with where you committed your crime and your socioeconomic status than anything about the nature of your crime.

Should probably read: "Your odds of dying for a crime for which you have been convicted ..." with another codicil about your odds of being convicted for a crime you did not commit.

A second complaint echoes the "normalize results for population" --- in that you might want to normalize the results for the violent crime and murder rate.

The US has a reputation as a violent country --- but that's only true for part of the US. New England's murder statistics would fit comfortably in northern Europe (or Canada). The Midwest and West would not be far behind. Statistically, the South is a very, very, violent place, and the murder and violent crime rates in the South are what make the statistics for the United States as a whole stand out among developed countries. I believe the acceptance of the death penalty there reflects the prevalence of violence in the society as a whole.

Part of this comes from the availability of medical care --- prompt medical care can keep a violent assault from becoming a murder, and it's easier to get that kind of care in the urbanized north than in rural parts of the south (and it is the rural south that has some of the highest per capita murder rates in the country). The regional rates of violent crime (not including murder) do not show as pronounced a disparity (but trans-national comparisons are harder for an amateur to do, since the definition of "violent crime" changes from country to country, and getting the statistics for countries other than the United States was hard to do the last time I tried).

Posted by dm_ | December 26, 2007 11:56 AM

>If people in Texas decide - commit a murder here and your chances of execution go way up - why is that unfair?

Even in Texas, the chances of being executed are small no matter, though they do go up if you're not white.

The justice system in Texas is messier than most, and they have had their share of innocence reversals as well, which is telling considering that the system in Texas has been notoriously resistant to, e.g., giving up DNA and other steps necessary to check out questionable convictions.

And In any event, the 'people' of Texas haven't so decided, a subset of officials (the previous governor, ambitious prosecutors) have so decided, and the people have, more or less, gone along on a feelgood issue that they don't give a whole lot of thought to.

Posted by drinkof | December 26, 2007 11:56 AM

"The reason to oppose the death penalty is that it is immoral. The state does not have the right to take the life of a human being. Ever. That assertion is simply an axiom - perhaps even the most crucial axiom - of a contemporary liberal society."

This is nonsense, a state without the power to kill is not likely to survive long.

This (the response to tristero) wins the prize for the most ridiculous comment in a few days: the legitimacy of the State depends crucially on its power to kill its own citizens. Not imprison, no coerce, but kill. Fabulous.

Of course Tristero is exactly right. The death 'penalty' is not only morally repugnant but also quite contrary to the very political idea of the US. There are solid libertarian grounds to be anti-death penalty, but I don't see much of that over in LP Land.

Posted by jonnybutter | December 26, 2007 11:58 AM

Obviously, I wasn't talking about military defense, but punishment for the commission of a crime.

I don't think there is any way to mince words or waffle about certain basic tenets of liberalism. One of those is that the state may not kill those it convicts for crimes, no matter how heinous. I doubt it is defensible except as a moral axiom.

I know that no utilitarian argument will work, including Matt's simplistic notion of "in theory, it could be fair." What he means is that he can imagine an actual human reality where the death penalty could be applied fairly. I do not have Matt's powers of imagination - I simply cannot imagine a human world without prejudices, preconditions, and problems discerning what is fair, not to mention favoritism. In fact, in a very real sense that is what a lot of Greek tragedy tries to point out.

But even if there could be such a world, I would still be opposed to the death penalty. Because it is immoral. The state has no right to kill.

Posted by tristero | December 26, 2007 12:31 PM

My father was murdered in Texas last year, and my coworkers and neighbors in California, mostly liberals, would reassure me with "Hey don't worry, it's Texas; he'll get the death penalty." And I feel like most people have few qualms about the death penalty being applied in cases where the victim is truly an innocent, the murder was unprovoked with no mitigating circumstances, and there is zero doubt about the identity of the killer.

In the end, my father's murder didn't fit the requirements for a death penalty in Texas, which was surprising to me. Either way, I didn't have a problem with the killer getting life in prison, but my mother was bitter about it for a while.

Tristero's ridiculous position that the state never can take a life apparently assumes that police and military don't sometimes kill as part of their jobs, working for the state. Also, I believe that death penalty for a small, specific set of circumstances is appropriate as well - the witness scenario is a good example. Plus treason is still constitutionally punishable by death.

Posted by Shane | December 26, 2007 12:41 PM

I waffle back and forth on the death penalty, but I've recently been convinced that it's a good idea by recent empirical studies which found that on average, an execution deters 5-18 murders (depending on which study you look at). If this is true (and I'm not a statistician so I can't do a good job of evaluating them, but there's been several, some of which have been conducted by anti-death penalty people), i think it's sufficient grounds to have the death penalty. It's true that the death penalty is arbitrarily applied and may result in the deaths of the innocent, but if it deters murder, then taking a human life via execution has to be compared to the choice of allowing five human lives to perish by homicide. Homicide's even more arbitrary and its victims are even more innocent.

Posted by JM | December 26, 2007 12:44 PM

I hear people smear Bush about Texas' history of executions but having lived down there for several years I can testify that they have so many executions because the vast majority of Texans want to execute murderers".

In horrible places populated by horrible people, executions and murder will both be popular. The popularity of execution in Texas is just one of the things wrong with the state. George W. Bush is another. Texas has enough creepy shit to make everyone happy.

Posted by John Emerson | December 26, 2007 1:06 PM

IIRC, those 'recent empirical studies' were done by right-wing economists, and are far from rock solid.

Posted by Barry | December 26, 2007 1:08 PM

Regardless of statistical corrections, the 17 states with zero executions still look exactly the same. Wisconsin has only had one execution in its entire 160-year history, and they've done just fine.

Posted by John Emerson | December 26, 2007 1:26 PM

There's no moral equivalence between a murder the state fails to deter and an execution the state performs. The state isn't responsible for the former in the way it is responsible for the latter. So you can't weigh one against the other, morally, the way these studies attempt to do.

OTOH, if you are only trying to optimize loss of life, then the execution of the innocent shouldn't--can't--concern you, as long as his guilt was plausible enough for his execution to have some deterrent effect.

Posted by kth | December 26, 2007 1:35 PM

But Adam Liptak points out that in 2007, Texas alone accounted for 60 percent of total executions in the United States.

It's my understanding that Texas doesn't have a disproportionate amount of death penalty sentences than other death penalty states. It seems to me, when a jury of one's peers sentences a person to death for something, that sentence should, at some point, be carried out (not doing so is an instance of the state subverting the will of its citizens). A lot of "Death Penalty" states don't follow through. Texas does.

Posted by Shinyk | December 26, 2007 1:43 PM

This would be a much better country if we could convince Mexico to take Texas back. There's a culture of malignancy and stupidity in that state that never seems to get any better.

While I have some sympathy for the 40% or so of Texans who aren't vapid right-wing Jesoid bullies, I'd certainly be willing to let them enter the US as full citizens after Texas gets dumped. Even better would be if the US could keep a few territories inside of Texas - call them anti-Gitmos. We'll keep Austin and leave the Sugar Lands and Houstons to the VRWJBs.

Posted by MoeLarryAndJesus | December 26, 2007 1:47 PM

the NY Times article ( http://www.nytimes.com/2007/11/18/us/18deter.html? ) gives a better summary (with links) of the studies than I could, but while it's true that there validity isn't rock solid, it's not true that they're the product of purely right wing economists.

On a philosophic level, I guess it's not true that allowing someone to die and taking a life are the same, but I also don't know if many death penalty opponents could honestly take the same stand if they had to say "The decision not to execute someone will cause five other people to die, but it's an important enough principle that it's worth the cost." Perhaps in the abstract that argument might sound noble, but if you can truly visualize the consequence of five actual people you know dying, I think it'd be callous to make that decision. If you did so, I think you'd have to justify it on some other grounds besides respecting the dignity of human life.

Posted by JM | December 26, 2007 1:49 PM

The state does not have the right to take the life of a human being. Ever.

The state necessarily manages crime through violations of life, liberty and property against offending individuals. To deprive the state of those tools results in a non-monopoly on violence (and usually a competing arbitration system, such as the tribal councils in Waziristan).

There's a name for a state that doesn't have a monopoly on violence within its territories--a Failed State.

Posted by Shinyk | December 26, 2007 2:04 PM

tristero:
"The reason to oppose the death penalty is that it is immoral. The state does not have the right to take the life of a human being. Ever. That assertion is simply an axiom - perhaps even the most crucial axiom - of a contemporary liberal society."

A Masterpiece of insipid assertion by tristero. All states are organized on the principle of a Ruler being necessary to elevate a society above the base and brutal primitive life of anarchy. That Ruler has the right to use lethal and other coercive force to levy taxes and defend the domestic tranquility and the safety of the Ruled from foreign enemy out to conquer or take resources from them.

In return for the benefits of Rule, the Ruled agree to comply by law, to give the sovereign the monopoly on the use of force, including lethal - except in personal self defense.
The state retains the Right to use lethal force, not just in self-defense, not just in military matters, but to enforce it's Will and it's laws on the Ruled. If cops come to arrest someone for a felony, or to move them off land for non-payment of taxes - they are under no obligation to retreat if someone brandishes a baseball bat or gun at them. The laws will be enforced even if the situation has to escalate to lethal force to end resistance.

Just spend a few momements reading the Social Philosphers that though long and hard about the essential principles of State. Hobbes, Rousseau, Locke, Paine and a thousand lesser lights and ideologues are in agreement on that.

***********************
Raenelle - The biggest problem with the death penalty is the damage it does to the executioner (and, in a democracy, that's us). In order to execute someone, a person of normal sensibilities must harden themselves, shut off the flow of compassion a normal person feels towards someone who is suffering. And that's the damage. We harden ourselves. The next time it's easier, and naturally we then can widen the circle of people for whom we refuse mercy.

More Lefty psychobabble. Most societies have great, admired figures in their history or present that signed off on war to kill large masses of people or signed execution warrants. There is no sign that it "damaged" people like Eisenhower, Truman, JFK, Churchill, FDR, etc. Nor have psychologists found guards, wardens, executioners engaged in lawful executions have been transformed into psychological basket cases.

Nor any evidence to support Raenelle's psychobabble that violence spreads uncontrollably to more casual, callous violence.

One of my uncles killed a lot of people. Thousands. He was a forward air controller that spotted several NVA regiments forming along the Ho Chi Minh trail and called in B-52 and "Thud" strikes on them. He just did his duty, did it well, never regretted it - but thought Vietnam was a bad war and has always been a liberal, not callous. But the dead NVA were just tough shit on the NVA, in his opinion. They went to war, they knew the risks, and lost. George McGovern felt the same about his 35 missions bombing (in most cases) "innocent civilian targets".

Nothing wrong with righteous killing.

Down in North Carolina, they held a banquet award dinner for a prison guard who chased down and shotgunned an unarmed escaping serial killer/rapist in the back rather than let him flee and get into the general public again. The banquet was attended by church leaders who called his killing moral and heroic.

Posted by Chris Ford | December 26, 2007 2:36 PM

Perhaps in the abstract that argument might sound noble, but if you can truly visualize the consequence of five actual people you know dying, I think it'd be callous to make that decision.

Five people I know could die in auto accidents because I favor the highway speed limit remaining where it is, and oppose ever more draconian punishments for "drunk" driving (i.e., driving after you've had two drinks). But those deaths are no more my responsibility than murders "caused" by my insistence on due process for people accused of capital crimes, and hence a rate of executions far lower than what the pro-deterrence literature would proscribe. Because make no mistake, by your reasoning (not just yours but of those studies as well), we should be ramping up the executions until the marginal deterrent effect is equal to, and offset by, the probability of executing an innocent person. To execute at a lesser rate would be nothing short of callous.

Posted by kth | December 26, 2007 2:42 PM

"On a philosophic level, I guess it's not true that allowing someone to die and taking a life are the same, but I also don't know if many death penalty opponents could honestly take the same stand if they had to say "The decision not to execute someone will cause five other people to die, but it's an important enough principle that it's worth the cost." Perhaps in the abstract that argument might sound noble, but if you can truly visualize the consequence of five actual people you know dying, I think it'd be callous to make that decision. If you did so, I think you'd have to justify it on some other grounds besides respecting the dignity of human life."

"It's true that the death penalty is arbitrarily applied and may result in the deaths of the innocent, but if it deters murder, then taking a human life via execution has to be compared to the choice of allowing five human lives to perish by homicide."

JM,

You are willing to have a system where the state is free to execute the innocent, in the name of protecting the innocent? You have no grounds to criticize death penalty opponents for being callous, where you are so morally hollow that you would promote the taking of innocent life by the state.

Posted by eltoro | December 26, 2007 2:52 PM

It seems to me that Tristero is doing the same thing that anti-abortion advocates do when they say "abortion is murder" -- he's taking a normative judgment and stating it as a fact, when the law is the opposite. ("Murder" has a legal definition, and abortion is not "murder" in any state). It's a reasonable political tactic -- if people accept the moral legitimacy of the statement, they will increasingly see the law as lacking moral legitimacy, and be amenable to changing it. But it's a political tactic, not a serious argument.

Just as abortion is not "murder," in states with laws providing for capital punishment, the state does have the right to take the lives of persons convicted of capital offenses. The assertion of that right is grounded in the state's claimed monopoly on violence -- in order to prevent people from avenging the murder of their loved ones, the state asserts the sole privilege of exacting retribution for the crime, and only after the accused has been convicted by a jury, with rights of appeal, etc. The legitimacy of this exclusive right to retribution depends on the public's acceptance that the punishment will fit the crime. Historically, in most cultures, that has meant putting killers to death.

I understand Matt's statement that the penalty seems appropriate in some specific cases -- it is hard to argue that the death penalty is not a proportionate, retributive response to some of the depraved violence that claims the lives of many innocent people in this country.

At the same time, I agree with most of the posters here that the death penalty is just bad public policy. It isn't, and really cannot be, administered fairly; it assumes a level of accuracy in identifying the guilty that the criminal justice system cannot claim; it takes away resources from other law enforcement efforts that would actually make people safer, etc. I also think it reinforces public acceptance of the legitimacy of violence, and is an incitement to, not a deterrent from, murder.

But I don't think you win this argument by claiming that your opponents point of view lacks moral legitimacy. And I don't think that Matt's "triangulating."

Posted by Jorge | December 26, 2007 3:53 PM

Now there's a surprise...

Chris Ford, the great Social Philosopher, is in favor of the death penalty. Who'da thunk it?

Posted by DMonteith | December 26, 2007 3:59 PM

I doubt that those who advocate the death penalty on utilitarian grounds typically support other far more effective, but unfortunately more inconvenient or costly, means of reducing (non-state)homicides, such as more restrictive, if not confiscatory, laws regarding private possession of firearms. Or vastly enhanced government programs to erase poverty and racism. In truth, it's absurd to think that the death penalty measurably serves any purpose but atavistic vengeance and group solidarity.

Posted by markg | December 26, 2007 4:15 PM

Often, "where you committed your crime" determines whether the actions you took are a crime at all - some things may be a crime in Texas and not in Maine. And some crimes may get you jail time in Texas and probation in Oregon. So what? The jurisdiction you commit an action in determines both whether the action is a criminal and, to the extent it is criminal, your range of punishment. People who don't want to be subject to the death penalty when they commite murder ought to move to Vermont.

Way to miss the point, Al -- the endgame of MY's arugment was that the death penalty, applied unevenly within a jurisdiction, should give one pause about meting out such a harsh punishment in an injudicious manner. You conveniently skipped over the 'socioeconomic status' element of the post.

Posted by EpicureanQuaker | December 26, 2007 5:34 PM

The death penalty is applied unevenly within Texas for many reasons. Houston (Harris County) has historically let juries try most crimes instead of using prosecutorial discretion to dismiss weaker cases. Other counties do not follow suit. In general, only large, urban counties can afford to prosecute death penalty cases. Thus, Harris (Houston), Dallas, Tarrant (Fort Worth), and Bexar (San Antonio) counties make up a large proportion of Texas death penalty cases. Regardless of where the case is prosecuted, Texas juries decide the punishment, not judges and not sentencing guidelines. Finally, to get the case before a jury is a daunting task. Texas' constitution and laws provide greater protection than most other states or the Federal government in the most basic areas of criminal investigation, i.e. search, seizure, and confessions.

Posted by Apep | December 26, 2007 7:21 PM

Markg - I doubt that those who advocate the death penalty on utilitarian grounds typically support other far more effective, but unfortunately more inconvenient or costly, means of reducing (non-state)homicides, such as more restrictive, if not confiscatory, laws regarding private possession of firearms.

Over half of US murders are committed by young thugs not authorized to have guns under state and local law. What will yet another law do/ Suddenly make the thug a law-abiding citizen?
The problem is a portion of the US population is low-IQ, primitive barbarian. Inprisonment with required hard work, no "sacred prisoner rights" might scare them into following existing laws, uncluding those on guns and not muggling helpless elderly. Another gun law targeting the law-abiding being effective on thugs is just Lefty fantasy.

Markg -Or vastly enhanced government programs to erase poverty and racism.

Yeah, blacks only kill at a rate 7-8 times other races because of racism. Racism, that Asians who obey the law more than whites do, never encountered.
Oh, and poverty....Taiwanese with a standard of living below the worst NOLA scum in America have 1/32nd the violent felony crime rate. Mumbai is 21 times safer than the safest US city, NYC, with starvation levels of poverty in a significant portion of the population.

Markg - In truth, it's absurd to think that the death penalty measurably serves any purpose but atavistic vengeance and group solidarity.

In truth, it's hard to think that Lefty opposition to punishing criminals serves any purpose but being a surrogate for the deeper, deeper Lefty motive of sucking one anothers cocks in a group setting.

Posted by Chris Ford | December 26, 2007 7:45 PM

Re: The state necessarily manages crime through violations of life, liberty and property against offending individuals.

I don't see anyone complaining about the state using deadly force when necessary. The question we are debating is whether the state should do so when it is not necessary. We can and should tolerate necesary evils when they are indeed necessary. To embrace evil deeds when there is no necessity is simply evil.

Re: There's a name for a state that doesn't have a monopoly on violence within its territories--a Failed State.

And a state which kills it citizens when there is no immediate and pressing need is called a "tyranny".

Posted by JonF | December 26, 2007 7:58 PM

The entire concept of "punishment" for "crime" is brain dead. Even Nietzsche understood that.

The goal should be to eliminate coercion as profitable. It's an economic issue. The goal is to make the return on investment in coercion unprofitable in general - or at least no greater than the "General Rate of Return" (a few percent).

To do this, you have to catch those who practice coercion and then arrange for them to compensate the victims to the degree they are able, thereby eliminating their profit from the coercion.

This means putting them into REAL "rehabilitation" - not the crap people use that term for now - and then requiring them to compensate the victims out of their future earnings.

As for compensation for deaths, we all recognize that a life has a monetary value. That's what insurance companies DO (not to mention the tribes in Iraq.) So a murder is no different in kind than any other crime. A monetary compensation is perfectly reasonable for a murder. Of course, it would be far higher than a burglary or a mugging or check fraud.

OTOH, if a murderer gets killed in the course of his apprehension, this is basically a wash in terms of making such crimes unprofitable. But executing or imprisoning a murderer after he has been captured is a waste of human resources and serves no actual purpose. The exceptions would be those who are not rational - serial killers and the like, who would need to be imprisoned and treated medically until the technology exists to correct their conditions.

The key to crime prevention is precisely that - prevention. You do that by organizing your society so that people don't become sociopaths in the first place. Then it becomes easy to deal with the tiny handful that, for medical or "fall through the cracks" reasons - end up committing crimes. It becomes cheap to provide such people with real rehabilitation. Punishment becomes unnecessary.

ZERO effort is going towards that direction today, while billions are spent on the "justice system", prisons and executions.

Of course, nothing about this is going to change, since this is a direct result of primate thinking. The people in Texas aren't unique. People everywhere secretly approve of the death penalty - except that they don't want to be seen as being as bloodthirsty as they are, so they deny it. Or they want to imagine themselves as being "morally superior" to everyone else, so they deny it.

The death penalty has never served to deter crime - except by the individual upon whom it is applied. And that is the sole reason it should exist - to deter a given individual from repeating his crime.

But there are obviously more humane ways to achieve that same end. Therefore the death penalty is clearly incorrect - in a rational society.

But there's nothing rational about this society.

Just as torture can be made to work on occasion, it's never the most effective means. So it's no surprise that the same psychotics - like Chris Ford - who support torture also support the death penalty - not to mention endless war, bombing of civilians, etc.

It's psychos like Chris Ford that make other people think the death penalty is necessary.

However, if I was running my old plan of assassinating the top ten thousand bozos running this country, I could see applying the death penalty to me. Because an ENEMY - a rational enemy who has a purpose - as opposed to a sociopathic "criminal" - should be killed. By definition, he can't be "rehabilitated" (but he might be "turned" - see below.)

But again, this only applies if you somehow have a rational society that nonetheless spawns "enemies". Even bin Laden doesn't qualify here - he has specific policy problems with the US. Change the policies, he wouldn't concern himself with us.

It's only because of socio-economic and socio-cultural failures in other countries or failures in policies in this country that the issue of "terrorism" crops up, necessitating the notion of "killing enemies."

But even there, there is really no need for execution after an enemy has been captured. Since by definition, execution cannot serve as a deterrent to an "enemy", other than by removing the individual enemy as an existent, there is really no value to it. Keeping the enemy imprisoned and possibly "turning" the enemy is more useful - just as non-coercive interrogation is more useful than torture.

So the policy should be toward terrorists - kill when necessary and possible, capture and turn when possible.

So we see there is never a need for execution as public policy - in a rational society. There are only four kinds of persons to whom it could be applied:

1) Medically ill individuals - serial killers.
2) Professional criminals (the drug dealer who shoots a competitor.)
3) Non-professional criminals (the guy who shoots his wife out of anger.)
4) Terrorists.

In each case, there is no value in executing the individuals involved. The medically ill person should be treated. The non-professional criminal is unlikely to do it again therefore does not need to be "deterred". The terrorist cannot be deterred - only turned or imprisoned until he can be. The professional criminal needs to be deterred but could be rehabilitated (or imprisoned and treated as the medically ill people are if his character is such that it amounts to mental illness.)

In short, either you do not need to deter or you need to imprison until you can change the behavior of the individual.

Execution is only cheaper in the short run than either of those approaches. The danger of executing an innocent individual or the threat of execution causing more extreme resistance on the part of those to whom it might be applied outweigh the short term benefit of execution.

Posted by Richard Steven Hack | December 26, 2007 8:21 PM

It is always im,portant to keep in mind with SR Hack that he had an education, had a good standard of living - fell through none of "societies cracks" that he bleats about - yet became a violent felon.

His long "all about me" posts are nothing but exercises in vanity from a loser long condemned to society's fringes by his stupid actions.

Posted by Chris Ford | December 26, 2007 9:32 PM

Can we all agree that executing innocent people is completely unacceptable? Netflick "Murder on a Sunday Morning". It's a documentary on a murder trial in Florida, and extremely well done.

Posted by Phoebe | December 27, 2007 12:14 AM

His long "all about me" posts are nothing but exercises in vanity from a loser long condemned to society's fringes by his stupid actions.

Interestingly, Mr. Ford, out of nearly a thousand words and more than 4,000 characters, there was only a single sentence with self-references. And that (fairly long) sentence had but three first-person pronouns.

Project much?

Posted by kenga | December 27, 2007 9:09 AM