The Rape Case

I forgot to say anything about the Court's ruling on the child rape case. My evolving view of the death penalty is that there are situations one could envision wherein punishment by execution would be a just outcome but given the realities of the world a "no executions" policy would be the best way to go. At the end of the day, to be haunted by a nagging fear that somewhere there lurks a criminal who deserves death but who is, instead, suffering a lifetime of imprisonment doesn't strike me as especially reasonable. So from that perspective, I both sympathize with any effort to limit the constitutional scope of the death penalty while also thinking that these efforts to draw distinctions -- to tinker with the machinery of death -- are fundamentally misguided.

In the specific case of people who rape children, it's worth saying that the death penalty is bad crime control policy. You want to make it the case that no matter what terrible things a criminal has done, he would get an even worse penalty if he killed the victim/witness. Getting bogged down into a debate over the relative heinousness of various crimes is a bit of a red herring -- there's an internal logic to the deterrent system that requires murder to carry a unique and maximally severe penalty.

Comments

Not necessarily to your last point - increasing the likelihood of the maximally severe penalty being applied works along the same axis.

Posted by Anonymous | June 26, 2008 4:39 PM

You want to make it the case that no matter what terrible things a criminal has done, he would get an even worse penalty if he killed the victim/witness.

1. We could vary the method of imposing death. Rape a kid, death by lethal injection. Rape and kill the kid, death by fire. Vary to regional (or even seasonal) taste, obviously.

2. Are we therefore conceding that the death penalty does work as a deterrent?

Posted by SomeCallMeTim | June 26, 2008 4:40 PM

I have major qualms about the death penalty myself, but there's one thing that bothers me: If the worst you can do is life in prison, what do do with the prisoner who kills (guards or inmates) in jail?

Posted by James Robertson | June 26, 2008 4:42 PM

It's worth reading the decision -- it's quite good, and raises other issues than those in your post (not that your post was an attempt to be exhaustive).

Among them: a law that executes child rapists puts child victims in very uncomfortable spots -- essentially spending the entire remainder of the childhood/young adulthood in pursuit of a goal they may or may not understand or be capable of morally deciding. In addition, given the frequency of intra-familial child rape (as in the case before the court), the child will be pressured to keep quiet so as to avoid having her step-father executed, or scapegoated by other family members.

Legislators who want to look tough on crime pass these laws without, I think, ever imagining what such a prosecution looks like in the real world.

Posted by Adam | June 26, 2008 4:43 PM

Solitary.

Posted by Anonymous | June 26, 2008 4:44 PM

"I have major qualms about the death penalty myself, but there's one thing that bothers me: If the worst you can do is life in prison, what do do with the prisoner who kills (guards or inmates) in jail?"

Solitary confinement?

Posted by Jayhawk Max | June 26, 2008 4:45 PM

I oppose the death penalty, but yesterday's ruling doesn't seem to have much textual support, unlike Heller.

Mr. Robertson, it is entirely possible to incarcerate such prisoners in a way that reduces their chances of harming others to to such a low level that it really doesn't amount to something worth expending much concern with. A guy in a modern super max lock-up doesn't get the opportunity to come into contact with other human beings.

Posted by Will Allen | June 26, 2008 4:48 PM

Imposing the death penalty on child rapists creates an incentive for a child rapist to kill his victim. If he knows that he can be sentenced to death for raping the child, why should he leave the child alive to help his prosecution?

Posted by Freddie | June 26, 2008 4:48 PM

I don't believe it's quite right to characterize our system as a "deterrent system". No one can be charged on the basis that he might commit a crime and no punishment has ever acted as a deterrent to stop crime.

Perhaps we need to decide as a society if some crimes are so heinous that the person who commits them forfeits his right to live in society and whether that forfeit of right should include the death penalty.

Posted by BevD | June 26, 2008 4:49 PM

These sorts of laws get passed for the same reason that marijuana is illegal: grandstanding politicians. It doesn't matter that it's "bad crime control policy," it's popular.

The question here, however, seems to be how much power SCOTUS has to regulate the death penalty. I dunno. That was Obama's beef.

If it were up to me, I'd offer the death penalty for any repeat offender of a violent crime. A couple of aggravated assaults and it's the needle in your arm. However, I could be convinced by statistical analysis of crime rates as a function of available punishments that this would be a waste of resources and/or that there are better ways to fight violent crime.

Personally, I see the cost of the care and feeding of feral people as a waste of resources.
.

Posted by Grand Moff Texan | June 26, 2008 4:49 PM

In my best Vito Corleone:

That is not justice, your daughter is still alive...

Posted by Just Karl | June 26, 2008 4:51 PM

This country already lets far too many child rapers and child molestors get off with light sentences. We should probably worry about keeping them in prison before we worry about killing a couple of them.

Posted by blah | June 26, 2008 4:53 PM

To my mind, there is no question that some people deserve to die. The question for me is, does it automatically follow that we therefore have the right to kill them?

Posted by Roddy McCorley | June 26, 2008 4:53 PM

Matthew makes some excellent points, and were I a legislator I'd agree that the death penalty should be saved for cases of murder. Given, however, that the Supreme Court is not supposed to be a super-legislature, I don't see how Matthew's points apply to the case at hand.

Posted by Al | June 26, 2008 4:54 PM

And don't forget that many of these child rapers will run the risk of getting executing through the informal prison justice system.

Posted by blah | June 26, 2008 4:58 PM

I've always thought it was funny that the conservative position was reflexively pro-death penalty. It's odd to believe that the government is no good at anything but then think that it magically manages to never execute innocent people.

In theory, I've got nothing against the death penalty for certain crimes. In practice, it's mostly a clusterfuck that should be done away with. I kind of like what California does. Many people are given a death sentence, but between appeals and delays, very few are ever actually executed.

Posted by TW Andrews | June 26, 2008 5:00 PM

Yeah, but the conservative movement is really a metaphorical SUV with a bumpersticker on its rear reading "I Brake for Killing Black People".

Posted by phil | June 26, 2008 5:10 PM

This is probably the issue I waver most on. I recently read a story about a Columbia U student who was brutally raped and tortured. It was horrifying, something you'd see in one of those gore-nography movies. A huge part of me thought, "We should rid the earth of this scum and not spent a dime of taxpayer money on him." But another part of me doesn't think we should ever murder.

I don't know, I probably never will.

Posted by 55 | June 26, 2008 5:11 PM

The reason we can't have the death penalty is because our justice system hasn't shown its responsible enough with "the privilege." You could look at the Dallas area alone and there have been multiple men released from Death Row only recently. Our justice system sucks. Almost as much as our penal system. Go to the Innocence Project's website if you want to be sick to your stomach.

Posted by Stacy | June 26, 2008 5:13 PM

I've always felt life in prison is a worse fate than being executed. Then again, I've never been faced with either.

Posted by live | June 26, 2008 5:21 PM

Nah, life in prison isn't all that bad as long as you're able to turn gay really quickly. Which luckily, I was. Got out on a technicality. Idiots!!!

Posted by Doug G. | June 26, 2008 5:26 PM

Matthew makes some excellent points, and were I a legislator I'd agree that the death penalty should be saved for cases of murder. Given, however, that the Supreme Court is not supposed to be a super-legislature, I don't see how Matthew's points apply to the case at hand.

As far as I can tell, Matt's view of constitutional law is almost entirely results based.

Posted by John | June 26, 2008 5:27 PM

This is dumb. The incentive to not kill the child is because this would create an automatic police investigation that may lead to the rapist/murderer. Leaving the kid alive and ensuring their silence through threats or guilt means there likely will never be an investigation.

I also think the argument about the death penalty creating additional pressure on the child to be silent is silly; as if a long, long prison sentence isn't pressure enough.

There are moral & practical arguments against the death penalty overall, but I don't see any that apply to child rape in particular.

Posted by DCReader | June 26, 2008 5:29 PM

This argument only works if you accept a significant deterrent value for the death penalty, and if you think the additional deaths caused by the failure of deterrence aren't outweighed by the children saved from being raped at all.

All of which are difficult questions. Anthony Kennedy doesn't appear to have any special expertise on these matters, but that's irrelevant, because his exquisitely refined moral sensibilities have rendered him omniscient.

Posted by matth | June 26, 2008 5:34 PM

DC Reader,

The particular problem with the death penalty in child rape cases is often witness reliability.

But the death penalty is simply problematic because it must presuppose that we can obtain foolproof justice. Or you don't really care if the occasional innocent is executed.

Having been involved in litigation as part of my practice for nearly 25 years, I grow ever more skeptical of the idea of judges, juries, prosecutors and witnesses (not to mention defense counsel)all performing their respective roles so well that it could make me comfortable with the idea of judicial killing.

Posted by Sir Charles | June 26, 2008 5:40 PM

Kennedy's public policy arguments are really beside the point. The critical analysis is in the first half of his opinion, where he divines a national consensus against executing child rapists. The rest is just bolstering.

Posted by phil | June 26, 2008 5:43 PM

Doug G.- really?

Maybe RSH will come along to tell us how jail is.

Posted by 55 | June 26, 2008 5:46 PM

Matt gets this mostly right, except for one point.

There is NO deterrent value to certain crimes. Rape is one of them. Murder is another. People who commit those crimes are not going to be "deterred" by the penalties, regardless of how terrible they might be. They do these things because of psychological needs that are not susceptible to rational analysis of the penalties involved under law.

The only criminals who are "deterred" by penalties are those who adjudge that in the course of doing "criminal business", e.g., selling drugs is a good example, if they are caught they can avoid a larger penalty by doing or not doing certain ancillary acts, such as carrying a firearm during the commission of a drug felony.

I say this based on my knowledge of criminal behavior gleaned from my stay in the Federal joint. And at that, very few criminals make that sort of judgement.

Laws only deter people who are contemplating criminal acts but who are not "criminals" per se. And I doubt there is any statistical evidence even to back that assertion up.

In other words, laws only serve to "keep out the riff-raff" from crime. They "keep honest people honest" - which is another lame phrase that only proves how useless they are.

As I said before, the ONLY solution to any level of crime is proper education and training of children. This is a "chicken-and-egg" problem, however, as most adults serving as parents never got that training themselves. So as long as we have a "nuclear family" concept, children cannot and will not be raised properly.

I believe it was a child psychologist who said once that conventional parenting IS child abuse. This is correct.

If you're not prepared to re-orient the society to produce rational, non-coercive adults - because you're a statist benefiting from that sort of society - then clearly bitching about legal penalties not being severe enough is not a credible position.

Posted by Richard Steven Hack | June 26, 2008 5:47 PM

"I also think the argument about the death penalty creating additional pressure on the child to be silent is silly; as if a long, long prison sentence isn't pressure enough."

I could be wrong, but I think many child advocacy groups would disagree with that. I think they support today's decision.

Posted by Samantha | June 26, 2008 5:48 PM

Re James Robertson

I wouldn't worry too much about not giving the death penalty to child rapists. Just put them in the general population of a maximum security prison and their fellow prisoners will take care of business as your garden variety murderer or bank robber detests being associated with such perverts.

Posted by SLC | June 26, 2008 5:51 PM

Yesterday's decision, Tuesday's decisino, whatever...

Posted by Samantha | June 26, 2008 5:51 PM

Your point that the perpetrator has nothing to lose by killing the victim is a very powerful argument indeed against extending capital punishment to crimes falling short of first-degree murder. In this instance the death penalty is not a deterrent, it is an incentive.

Posted by Donna Q | June 26, 2008 5:55 PM

Who else would like to know the amount of men falsely imprisoned for rape? Obviously, its not nearly as many as guilty rapists walking the streets, but still...

Posted by Harold | June 26, 2008 5:59 PM

How about mandatory castration for child rapists?

Posted by Noah | June 26, 2008 6:00 PM

55 said: A huge part of me thought, "We should rid the earth of this scum and not spent a dime of taxpayer money on him." But another part of me doesn't think we should ever murder.

Mario Cuomo gave the best answer I've ever heard as to why he opposes the death penalty. I don't have the exact quote, but he spoke about how his daughter was actually attacked by some maniac. He said that if he had the power, he would personally like to hurt or maybe even kill the person that attacked his daughter. But the rules we make as a society need to be better than his own worst instincts.

I also like Gandalf's comments about the death penalty in the Fellowship of the Ring when Frodo says that Golem deserves to die:

"Deserves it! I daresay he does. Many that live deserve death. And some that die deserve life. Can you give it to them? Then do not be too eager to deal out death in judgement."

Posted by Rob Mac | June 26, 2008 6:14 PM

Will Allen, you support the death pentalty for Iraqis whose only crime is living over resources you want. No reading of the Constitution supports that, and yet there you are giving the slaughter your full-throated support.

Posted by Not As Stupid As Will Allen | June 26, 2008 6:18 PM

"How about mandatory castration for child rapists?"

How about I get a nickel for every person who begins to bring up bizarre, tortuous punishments every time the subject of the death penalty is brought up. I wonder if the appalling level of violence in America and our vindictive and sadistic imaginations have anything to do with one another.

You can also lay it down that any discussion of the punishment for rape is going to involve someone pointing out how cool it is that we have an epidemic of prison rape in the U.S., because that way rapists get what they really deserve! I mean it almost as cool as having death squads who go into the slums at night and take out the scum who got off on technicalities/ lack of evidence!

Posted by Colatina | June 26, 2008 6:26 PM

You read various columnists, pundits, bloggers, you find a few you like, read them regularly, you comment, you post things like "You're right ... Exactly ..." then you read a post on a subject in which you have significant experience and knowledge, because, well, the subject concerns what you do for a living, and said columnist/pundit/blogger writes something that is so, so wrong that you wonder, just how full of shit he is on subjects in which I do not have intimate, detailed knowledge, such as, um, foreign policy.

For me, it's like going to dinner with a super hot, super intelligent woman who sometime between the entree and desert lets it slip that she's an unabashed creationist who also says things like "Jessica Simpson" "artist" and "superstar talent" without irony or sarcasm in the same sentence.

In the specific case of people who rape children, it's worth saying that the death penalty is bad crime control policy. . . . here's an internal logic to the deterrent system that requires murder to carry a unique and maximally severe penalty.

No one I know who is serious about the death penalty, and I'm including AG's, AUSA's and non-zealot local prosecutors, believes that the death penalty acts as a deterrent in any way, shape or form.

I'm looking right now at my unit's client list of 60 sad, wretched, pathetic souls slowly rotting away in San Quentin, all of whom did their crimes while there were 100's of people already on death row and I'm realize that these folks are way beyond way deterrent policy. One client is so damaged that the prosecutor essentially told the jury, during penalty phase arguments, that our client (who had been in and out of state mental health programs since he was six) was so damaged that there was nothing more that the state could do to fix him, so therefore he had to die. The jury agreed.

My point is none of my clients was deterred by the death penalty. In fact, they pretty much live in a world where abstractions like deterrence do not exist. As one of my client told the police "I do what I gotta do, and the bitch just went up!" (No, he's not black.)

To be even eligible for the death penalty you have to have committed a murder under circumstances that pretty much put you inside a deterrent-free zone, that is, when you committed the crime, nothing was going to deter you from going through with it, let alone an abstract like crime deterrence policy. I suspect the same applies to child rapists.

Not to go a Petey on you, but really, when you casually throw away lines like "here's an internal logic to the deterrent system that requires murder to carry a unique and maximally severe penalty." as if it is settled fact that the death penalty acts as a deterrent, then why should I read your book? Do you know what the hell you are talking about?

Posted by Shine | June 26, 2008 6:27 PM

OMG, I actually agree with RSH. Unfortunately I was busy writing my response when he posted. There is no deterrent value to certain crimes.

When asked, I analogize the deterrent argument regarding the death penalty to the WMD argument regarding the Iraq War. It's a sales pitch because of the fear the public won't buy the true reasons (retribution/re-shaping the Middle East).

Posted by Shine | June 26, 2008 6:36 PM

I don't think that execution is a legitimate power of government and I'd like to see capital punishment abolished. So this next bit will seem like arguing against interest. Matt writes:

"You want to make it the case that no matter what terrible things a criminal has done, he would get an even worse penalty if he killed the victim/witness. Getting bogged down into a debate over the relative heinousness of various crimes is a bit of a red herring -- there's an internal logic to the deterrent system that requires murder to carry a unique and maximally severe penalty."

This is a little misleading. We do, de facto, reserve at least one worse penalty than the death penalty. Police departments around the country make it their policy to shoot suspected cop killers on sight. This is, in many ways, a worse penalty than the judicially administered death penalty. And it seems to be effective in deterring the majority of criminals (even murderers subject to capital punishment) from killing cops in order to get away. It's a quibble, but I think a worthwhile one in that it shows the hazards of granting death penalty advocates their dubious premises.

Posted by southpaw | June 26, 2008 6:36 PM

I'm looking right now at my unit's client list of 60 sad, wretched, pathetic souls slowly rotting away in San Quentin, all of whom did their crimes while there were 100's of people already on death row and I'm realize that these folks are way beyond way deterrent policy.

There's somewhat of a sample problem, here. Obviously the people for whom the death penalty worked as a deterrent aren't on your list, because they didn't kill anybody. And it's impossible for you to state, with any confidence, that there aren't any people who were so deterred.

That is perhaps the strongest argument for the death penalty as a deterrent - it's completely impossible for it not to be a deterrent.

Do you know what the hell you are talking about?

He's not the one who drew an amazingly general conclusion from such a loaded sample.

Posted by Chet | June 26, 2008 6:41 PM

That is perhaps the strongest argument for the death penalty as a deterrent - it's completely impossible for it not to be a deterrent.

This is such typical, bloggy rhetorical gymnastics that I'm not even going to dignify it with a response.

Posted by Shine | June 26, 2008 7:04 PM

Issues of dignity aside, I found Chet's post puzzling:

Obviously the people for whom the death penalty worked as a deterrent aren't on your list, because they didn't kill anybody. And it's impossible for you to state, with any confidence, that there aren't any people who were so deterred.

That is perhaps the strongest argument for the death penalty as a deterrent - it's completely impossible for it not to be a deterrent.

The first two sentences make a relevant point: the existence of people who were not deterred does not by itself show that no one was deterred, nor does it, by itself, tell us how many people might have been deterred.

But the third sentence doesn't follow from the first two at all. It claims to state an argument, but it's just an assertion, and one that is not supported by the first two sentences. I wonder if you could clarify what you meant.

Posted by guyx | June 26, 2008 7:22 PM

> Among them: a law that executes child rapists
> puts child victims in very uncomfortable spots --
> essentially spending the entire remainder of the
> childhood/young adulthood in pursuit of a goal
> they may or may not understand or be capable of
> morally deciding.

I have to think that the Supreme Court justices, supposedly the most learned legal scholars in the land, know that in the US justice system it is the State that files and pursues charges and trial, and either the jury or Judge who determine the sentence. The victim is involved as a witness but is not responsible for "pressing" charges and certainly has no affect on the sentence.

Cranky

Posted by Cranky Observer | June 26, 2008 7:23 PM

The problem is that Chet is asking me to prove negatives, which I can't.

I can't prove that the death penalty deterred absolutely no one from committing a murder with special circumstances, just like he can't prove that the death penalty acted as a deterrent because some people didn't kill anyone.

It's like saying "A" is a letter in the alphabet, "shoehorn" is a word made of letters in the alphabet, therefore impossible to prove that "A" is not a letter in the word "shoehorn."

Posted by Shine | June 26, 2008 7:39 PM

Matt I agree with your conclusion but am puzzled to read some of the reasoning from your keyboard. Aren't you a consequentialist ? If so, why do you use the phrases "a just outcome" and "deserves death."

I'm also inclined to consequentialism, so I would only be concerned about some damage to someone else of the failure to kill. Now I am sure you are no more a strict consequentialist than I am, but my deviations from, hell I admit it, hard core utilitarianism are of the form of

a) believing in protecting individuals and their rights even if, on balance, it is costly to all even counting the pleasure minus pain of that individual

and

b) maybe ruling out some actions as exceptions to the general rule that the consequences justify the means (provided the means are necessary and effective).

Both reduce the already low chance that I would support the death penalty.

I don't get how you write the first paragraph of your post.

The second paragraph, in contrast, is super-consequentialist -- let the punishment fit the benefits to society of the punishment which in the case at hand are likely to be negative.

It is also very convincing. I mean it should convince anyone who doesn't want kids to be killed. Even people who are not especially consequentialist don't like that. I mean is anyone going to argue "we are morally obliged to kill this man even though the only likely consequence is that innocent children are more likely to be killed ?" In fact it is clear and convincing enough that, if (when) people claim not to be convinced by it, I would (will) conclude that they mean "revenge" when they say "deterrence."

Posted by Robert Waldmann | June 26, 2008 9:39 PM

It costs a lot more money to execute a person than it does to imprison them for life.

Most murders are committed by very young and stupid people. It's not at all uncommon for prison lifers to mature into relatively enlightened inmates, who go on to live meaningful lives within the limits of prison existence. I think most criminal justice professionals would agree that the typical murderer is more capable of rehabilitation than, for example, a hardcore thief.

As for those of you who don't support the death penalty in general but only for the really really really bad guys - please go out and buy a fucking clue.

That's not how human nature works. Give the majority (the "state", or the "government", or the "lynch mob") an inch, and eventually they're going want to take a mile. That's the whole point of the Bill of Rights.

We've designed all these super-cool death penalty procedures since the end of the moratorium in the 70's, and yet we have hundreds of guys on death row who are nothing more than garden variety murderers.

Posted by JB2 | June 26, 2008 10:23 PM

It appears that the Apostle Matt disagrees with Saint Obama on this matter (or half-disagrees; I can't tell).

Nevertheless, I can think of a few notable historical figures far brighter and with far more compelling contributions to the human race guilty of this crime who the Obama fellow would have put to death to become president.

But - I know - Obama only says he'd kill child molesters while "the Clintons" actually put a drueling retard to death.

Because, friends: words no make a man a monster.

But what about actions?

Posted by Linus | June 26, 2008 10:40 PM

If the death penalty isn't a deterrent, its rather strange that so many people plea bargain or turn state's evidence for life in prison instead of the death penalty.

As for Shine, Chet is not asking you to prove negatives. He's asking you to refrain from asserting positives based on a loaded sample.

Posted by DJ | June 26, 2008 11:28 PM

Obama's view seems to be that the court's ruling was too broad -- that the 8th amendment does not, in principle, bar execution for all crimes beyond murder -- and that the Supreme Court would have been better making a ruling on narrow points of specific implementation -- making sure it was done in a "careful and appropriate" way.

It seems that this view goes against the precedent of Coker v Georgia. I'm not exactly sure what Obama's specific reasoning is -- his press conference statement was too brief. I suppose at this point it might be considered naïve to think he might consider the law involved and not simply regard it as an opportunity for political positioning, but I think it's possible to oppose the death penalty -- in general or in specific cases -- without viewing it as violating the 8th amendment. It would have been nice if we could know a bit more about how he disagrees with the SCOTUS ruling beyond the brief press conference response, and whether he actually supports the Louisiana law or merely regards it as minimally compliant with the 8th amendment.

Posted by Julian Elson | June 26, 2008 11:53 PM

My evolving view of the death penalty is that there are situations one could envision wherein punishment by execution would be a just outcome but given the realities of the world a "no executions" policy would be the best way to go.

Fair enough.

At the end of the day, to be haunted by a nagging fear that somewhere there lurks a criminal who deserves death but who is, instead, suffering a lifetime of imprisonment doesn't strike me as especially reasonable.

Well of course one does not need to be "haunted by a nagging fear" in that way to conclude that the benefits of the death penalty--justice, deterrence, incapacitation, whatever--outweigh the costs.

Posted by Mixner | June 27, 2008 12:08 AM

"If the death penalty isn't a deterrent, its rather strange that so many people plea bargain or turn state's evidence for life in prison instead of the death penalty."

Now that's a really stupid remark.

A person WHO IS ALREADY IN THE DOCK has a choice between dying and living, so he chooses living even under rotten conditions for the rest of his life as opposed to dying.

And this guy thinks this has something to do with "deterrence"?

This is the height of stupid.

The point of deterrence is that it's supposed to prevent you from doing what you could get executed for in the first place. If laws and their penalties actually deterred crime, THERE WOUlD BE NO CRIME!

Apparently many people can't even figure that one out. And we wonder why morons commit crimes for which they are executed? Why? Because we have morons who can't even figure out that laws do not deter crime! Morons are morons!

Posted by Richard Steven Hack | June 27, 2008 1:03 AM

The point I was trying to make, one that RSH makes, is that those people most likely to commit crimes eligible for the death penalty come from a class of people for whom deterrence is meaningless, and that those people for whom deterrence is a factor, they don't commit crimes eligible for the death penalty, not because of the death penalty, but because they are not likely to commit violent crimes in the first place, let alone murder with special circumstances.

And even in that case, Scott Peterson, who demographically belongs in the second group, the death penalty didn't seem to deter him. My point is that when you make the decision to kill someone under special circumstances, deterrence is not a factor.

Note that not all murders are eligible for the death penalty. You need to premeditatively and deliberately kill someone with special circumstances. Let say that Matt has an argument with Goldberg, and a few days later he walks up to Goldberg and shoots him in the head. If that was all, Matt probably not going to face the death penalty. If he was waiting in the hall for Goldberg, legally he's eligible. If afterwards he decides to take Goldberg's wallet, yeah, probably eligible as well because prosecutors would argue that he intended to rob and kill Goldberg. it's the robbery and lying in wait that make Matt eligible for death.

That's all in theory. The fact remains that Matt would not be prosecuted for death because most prosecutors realize juries would not sentence a nice, Harvard grad like Matt to death. OJ was lying in wait, and prosecutors didn't charge special circumstances because they new an LA jury would never sentence OJ to death. (At the time, they probably didn't know that murder is legal in LA for celebrities -- OJ, Robert Blake, Phil Spector). The Melendez brothers, the tow old ladies convicted of killing homeless men for life insurance benfits, all were accused of crimes that certainly were eligible for death, but prosecutors declined. Who you are is more important in the charging of death than what you did.

The threat of criminal consequences such as 25 to life in prison is probably enough to deter Matt from actually killing Goldberg. However, once Matt cross the Rubicon makes the decision to kill Goldberg, I doubt that the death penalty is going to be any deterrent.

Posted by Shine | June 27, 2008 2:11 AM

Matt--

So the death penalty generates a lot of discussion. Big surprise, no? I just wanted to drop in one point, and someone else may have done it better...

Whatever system of punishments you put in place, there's always going to come a point in time at which you "peg the needle" and can't really add anything else to the punishment. Once you've sentenced a regicide to be partially hanged, disembowelled, torn with hot pincers, castrated, and ripped apart by horses (to take the classic from Foucault), you don't really have any cards left to play to keep him from spitting on the guards. Or, in our time, once you've committed capital murder, we lose the power to dissuade you from committing further murders, because we can't give you two lethal injections.

So the question is not so much _whether_ your penalty system maxes out, but _when_. And I don't necessarily accept the premise you take as an axiom: that murder is by definition the very worst crime there is, essentially different from anything else.

Posted by Craig | June 27, 2008 7:55 AM

I have to think that the Supreme Court justices, supposedly the most learned legal scholars in the land, know that in the US justice system it is the State that files and pursues charges and trial, and either the jury or Judge who determine the sentence. The victim is involved as a witness but is not responsible for "pressing" charges and certainly has no affect on the sentence

Cranky, I think you're probably aware that someone has to come forward for there to be any charges pressed or any witnesses interviewed. The State is not psychic. Would my 14-year-old in-law have gone to the hospital immediately after she was raped by her father if she'd known he would have faced the death penalty? I don't know, but the choice was certainly hers, not the justice system's.

Posted by Persia | June 27, 2008 10:40 AM

Craig,

I'm in favor of the death penalty for child rape, very much so. But just to play devil's advocate for a secon, Mr. Yglesias' point isn't simply that the penalties 'max out'. The point is that in this case, the rapist could be tempted to kill his victim, which is a rather different thing than spitting on the guards. Rapists already have a very strong reason to kill their victims- since rape prosecutions often depend lagely on the victim's testimony, killing would reduce his chances of getting caught. We balance that by treating rape as a non-capital crime so that the rapist must balance the possibility of a worse sentence if he murders the victim, versus a higher possibility of being caught if he doesn't. Making rape a capital crime could tip the balance towards rapists killing their victims. Again, I'm just being devil's advocate here.

Posted by Hector | June 27, 2008 10:47 AM

Shine,

While I am suspicious as to whether expanding the death penalty to child rape cases will have the anti-deterrent effect that some people have suggested (meaning the supreme court decision and Yglesias here among others) your argument focuses on precisely the wrong cases.

What you are showing is that the death penalty does not work as a deterrent for the class of murderers that wind up on death row. Such people commit these murders because they are in some way undeterrable.

It is also reportedly true that pedophiles are among the least deterrable criminals regarding child rape. But the relevant question here is whether pedophiles who are undeterrable with regard to child rape are more open to such rational decision making with regard to covering up the rapes. That is a rather different matter.

The more you focus your argument on the fact that there are very special conditions for recieving the death penalty, and that the specific people who commit such crimes are undeterrable, the more you make clear that you are argument is not directly transferable to the present case. Because the people under discussion are a different group of people.

I am not sure your conclusion is wrong, but your argument makes itself unnecessarily beside the point by focusing on the group of people you deal with directly, when they are not the group under discussion.

DJ is clearly wrong to confuse plea bargaining after the fact with deterring before it. But the cases in question are actually somewhat in between because they are cases concerning the covering up of a crime already committed via a more serious crime.

Posted by Lon | June 27, 2008 11:07 AM

It is also reportedly true that pedophiles are among the least deterrable criminals regarding child rape. But the relevant question here is whether pedophiles who are undeterrable with regard to child rape are more open to such rational decision making with regard to covering up the rapes. That is a rather different matter.

In some ways, I'm not sure "deterrant" is the right concept. A child rapist bent on committing his crime is unlikely to be deterred. Having committed his crime, however, I would argue that the law in question creates an incentive to kill the victim.

Child molesters are known to be meticulous planners who will do whatever they can to reduce their risks. In that sense, they are supremely rational actors. In this context, killing the child not only results in no additional penalty - it destroys evidence the child might provide authorities.

Posted by owenz | June 27, 2008 12:29 PM

Using the death penalty wisely for optimal effect is as hopeless as using torture wisely for optimal effect. In fact, the negative effects will almost certainly outweigh whatever benefits gained. Both should be prohibited.

Posted by Will Allen | June 27, 2008 12:31 PM

On the other hand, if you have stolen Will's oil by hiding under the ground you live on - well, that offense can only be punished by bombing, shooting, and generally turning your nation into a basket case.

Posted by Not as stupid as Will Allen | June 27, 2008 12:40 PM