Thursday, October 11, 2007

Tinkering with the machinery of death

Ever since Michael Richard was prematurely executed because Judge Sharon Keller refused to let her clerk stay open an extra 20 minutes, basically using a technicality to justify allowing the execution to go forward despite concerns stated by the US Supreme Court that very day, Justice Harry Blackmun's famous quote has been rattling around my head, searching for a place to land in a column, "From this day forward I no longer shall tinker with the machinery of death."

Then latecomer Texan Jacob Sullum over at Reason used the same pericope to make a more interesting argument than any I'd come up with, so I'll simply recommend you to his thoughtful piece on the lethal injection debate. "As a matter of constitutional law," writes Sullum, "I think [abolitionists are] wrong. But the squeamishness reflected by the continuing quest for a perfect execution method suggests the abolitionists may ultimately win the policy debate, and perhaps they should." Sullum concludes:
This is a question that should interest conservatives who believe disgust reflects moral intuition. If the aim is to quickly and reliably kill people while inflicting as little pain as possible, it would be hard to improve on the guillotine or a close-range shot to the back of the head. Yet we shrink from such methods, perhaps because they too vividly display the reality of killing a man in cold blood.
Does "disgust" reflect "moral intuition"? I'm not sure I agree with that, perhaps not at all, at least not without the caveat that our intuitions may be and frequently are flat out wrong when confronted with evidence and the complexities of life's moral decisions. I suppose the PETA folks might agree, e.g., that a child's squeamishness over frog dissection proved their moral point, but I still won't get too riled up over cancer research with animals. Still, it's an interesting idea to ponder.

MORE: Searching and reading more on the subject, I ran across this recent column from the New York Times about a scientist who speaks in similar language to Sullum's about "disgust" and "moral intuition," arguing that the "task of morality is to suppress selfishness." That jibes with the study referenced recently over on Corrections Sentencing which concluded "that chimpanzees do not show a willingness to make fair offers and reject unfair ones. In this way, they behave like selfish economists rather than as social reciprocators." I've never given great thought to the relationship between morality, fairness, evolution and genetics. Perhaps the impulse to suppress selfishness and the emergence of moral systems stem from our genetic makeup, not just idle intellectualizing. Perhaps our values and sense of fairness lie at the very genetic root of what it means to be human. And perhaps they're evolving.


Anonymous said...

Have you noticed the thundering silence, about Judge Keller, coming from the boys and girls at the TDCAA site? Maybe I've not looked in the right places, but there seems not to be a word on the subject. Oh, there is a long discussion knocking the ABA position on the death penalty, and a lot of snide comments about innocence projects, but nada about a severe lapse of judicial duty that resulted in the execution.

You mention the TDCAA every now and then on your blog. I think you should make it clear to your readers that the TDCAA is not a state organization. It is a private organization, reflecting a particularly narrow minded view of law and justice, one that is not held by all prosecutors. I have had posts removed from the site for criticizing Ken Starr, and for appaulding a Texas prosecutor who did not show the right attitude about lawn order.

I wonder, does TDCAA get any public funding at all?

Anonymous said...

I read the articles about Sullum and Haidt, and I have to wonder if the one about Haidt in particular was innacurately reported.

The dynamics between the will, reason, and the human appetite have been discussed repeatedly ever since the birth of philosophy and religion. Aristotle and Freud are two obvious examples of thinkers who discussed both the "elephant" and its "rider" to great degree, and Freud based his work on the relationships between the Id, Ego, and Superego, and he thought humans were driven largely by instinct, not necessarily reason.

I find it hard to believe that Dr. Haidt thinks the elephant has been largely ignored. Maybe his quote was taken out of context, or maybe he doesn't have a comprehensive a understanding of the history of human morality. I tend to think his quote was taken out of context in an article meant to simplify a very complex issue.

Thomas Hobbes said...

Has the death penalty's deterrent effect ever been fairly tested? For years, our society has at once trumpeted its deterrent effect and worked to make it ever more antiseptic, private, and painless. What we ignore is that this approach takes the act of execution from the public eye and consciousness. When the people we would want to deter are only anecdotally aware of the consequences, why should we expect any significant effect?

So, why not bring executions back to center stage?

Executions are performed in the name of the state, on behalf of its' citizens. Forgetting for a moment the whole issue of deterrence, I wonder why any of us should (or should expect to) be shielded from an act performed in our collective name and with our permission? As a "civilized" society, why shouldn't we have to face in its entirety what we would so gladly have others do for us? If we then are unable to watch a second time out of pure moral repugnance, perhaps it is time to execute the dissonance in our righteousness and our revulsion.

Anonymous said...

To 11:04, in a way, your argument makes sense.

However, there are responsibilities fulfilled by our government that the general public would rather not participate in or take direct responsibility for.

For instance, many people would have a hard time shooting or killing someone in a deadly situation that requires self-defense, but officers have to make those choices sometimes, and rightfully so. There is supposed to be proper training in place so officers can judge those situations correctly, just as the criminal justice system is supposedly rigorous enough to prevent false convictions (it's not). A lot of people wouldn't want to join the military or be tasked with fighting others in combat, but our military is necessary, and they are meant to act on our behalf when properly utilized.

Also, victims sometimes want convicts to be executed, and they get satisfaction from a murderer's death. They are a part of the general public, too. They sometimes witness executions. Is their desire for a certain form of justice to be denied on behalf of the revulsion felt by other citizens who are not directly affected by the crime?

And what about being respectful of the death of the convicted? It could be argued that a relatively private death away from the prying general public is simply more respectful and humane than a public spectacle. A widely public execution could, by definition, be considered "cruel and unusual," thus not truly reflecting the general execution style of our states.

I'm not saying at all that the death penalty is good. But I think that in terms of public policy, the purpose of the death penalty (balance of justice, deterrance, belief that a heinous criminal must take responsibility for their actions), should be evaluated, then weighed against whether those things outweigh the risk of killing an innocent person. I might be naive, but I think more people would be willing to agree that the clear likelihood that innocent people are getting executed is more morally vile than the executions of the truly guilty, public or not.

Anonymous said...

The execution of anyone by the State is repulsive. So is war.

Neither execution nor war are necessary. Mean, greedy, power hungry people devise systems of execution and go to war to further their goals.

Everything possible should be done to minimize the need for executions and war. Everyone will surely agree with that!

Elimination of executions will be a good first step toward moral improvement for humans.

Thomas Hobbes said...

To 11:54 . . .

For the record, I'm not an opponent of the death penalty.

I understand that the government sometimes steps in to take care of those tasks over which most citizens don't wish to dirty their hands. But the fact that we are that way doesn't make it right and good.

As for victims, while I am terribly sympathetic to their feelings, we all surrender (as you allude) to a social contract with the government. Because part of that surrender involves criminal justice services, then - no - victims are not allowed to satiate themselves via a particular form of punishment (not to be confused with justice). That decision also belongs to government. Offenders are neither prosecuted nor punished on behalf of the victim(s).

As for the sensibilities of the offender, I can only note that he or she is being executed. I'm not sure how one respectfully and humanely, albeit deliberately, kills another. "Cruel and unusual" is a phrase that traditionally has been applied to the means, not the locus. As an aside, I find it odd that execution is so well tolerated while simply maiming an offender, which arguably might seem a lesser punishment, is considered cruel and unusual.

I think everyone, including offenders and the general public, should take responsibility for their actions (and inactions). But I suppose what really ticks me off is that we irrationally don't want to just call capital punishment what it is. It's retributive punishment. Nothing more. Empirically demonstrating a deterrent effect is a near impossibility. It's analogous to calculating the deterrent efficacy of the law by going to the jail and counting the number of people who weren't arrested and booked.

Whether it appears so, I agree that one innocent executed is too great a price to pay to keep a penalty in place.

Anonymous said...

To leviathan:

Thank you for your reasoned response. I should have elaborated even more in my message, but I thought I'd written too much.

My point about weighing the emotional desires of victims who want executions versus citizens who oppose the death penalty was that taking a group's emotional response to something as graphic as a public execution, and then basing public policy on that, isn't sound. There will be some who are unflappable, and others who will be repulsed. What if those who think justice is being served outnumbers those who cringe? Granted, laws tend to change over time to reflect public sentiment (to include emotions), but people's responses would vary based even on where they reside, or the race, age, appearance, mental capacity, or fame of the offender. I don't think people would feel equally sorry for each person on death row, and in fact, the more executions that were publicly performed, the more I think people would become desensitized to them. I'm sorry to say so.

And I would argue that a locus involving broad public scrutiny could be regarded as a means (cruel and unusual) because it would bring about a further degree of shame, humiliation, and degradation than what is experienced in the current system.

But again, all of that is somewhat beside the point because the likely innocence of some on death row is the most immediate and unassailable, non-theoretical issue of all.

Texas Moratorium Network said...

According to this blog from a Houston attorney, a second complaint against Judge Sharon Keller is in the works.

The Harris County Criminal Lawyers' Association is going to be filing a complaint against Judge Keller with the Commission on Judicial Conduct on Monday. Tomorrow from about 10:30 a.m. to about noon I will be in the ready room on the 7th floor of the Harris County Criminal Courthouse, 1201 Franklin Street at San Jacinto, with a copy of the complaint for you to sign.

Anonymous said...

What a bunch of dog vomit. I hope the Houston Criminal Lawyers Association files complaints against the stupid lawyers who don't know the procedure in the rules for filing a document after court is closed. Any second year law student who takes Texas Appellate Procedure can tell you. This is a total fabrication amongst a bunch of anti's who cannot even count votes on the court. For that matter, in a situation like this, I'm sure the court would accept a nicely handwritten motion for stay.