Via TJIC, Radley Balko shares almost exactly my position on the death penalty:

I'm opposed to the death penalty not because I don't think there are some crimes so heinous that they merit death as a punishment. I'm opposed to it because I don't think the government is capable of administering it fairly, competently, and with adequate protections to prevent the execution of an innocent person.

This is an issue that I have moved pretty far on since my high school conservative days.  I used to be a death penalty hawk --  I suppose this was in part due to the natural tendency to take the opposite side of folks making bad arguments.  Death penalty opponents would argue that we just don't have the right to take away the life of that lady who drowned her three kids by sinking them in a car in a lake because she was tired of taking care of them.   Well, I felt she had pretty much forfeited her ability to fall back on the sanctity of life defense.

But I am increasingly pessimistic of the justice system's ability to adequately separate guilt from innocence (it is run by the government, after all).  We have far too many examples of people who have exhausted their normal appeals and have sat in jail, and even on death row, for years or decades before exculpatory evidence came to light (or, in situations of bias like in the deep south, where courts were finally willing to consider exculpatory evidence).   We can only tremble to think of how many innocent men were never cleared before the day of the fatal injection came.  Prosecutors, who often are using the position as a springboard for higher office, generally have the incentive never to back down from a case and to defend every conviction, no matter how clear the evidence becomes that an innocent person is in jail, to the very end  (see Janet Reno, for example, who in a twist of terrible irony now sits on the board of the Innocence project, while men falsely convicted in her day care pogrom still sit in jail).

Update: Speaking of prosecutorial abuse....


  1. jsalvati:

    I agree with this completely. I only want to add that I am also skeptical that it adds much deterrence; it just doesn't seem like realistic psychology.

  2. Bob Sykes:

    Yours is the only valid argument against the death penalty, and it is a convincing one.

  3. Steve:

    I agree totally and have also been saying it for years. To be a conservative (or even a rational liberal) is to understand that there are certain things that government can't administer effectively or efficiently.

  4. rxc:

    You know, there is a lot of evidence that the government is not capable of carrying out a war without killing a lot of "innocent" non-combatants. Should we therefore eliminate the Department of Defense(War) and declare the US a pacifist state?

  5. stan:

    Janet Reno is a very, very sick person. I can see why Bill and Hillary chose her as AG.

  6. Brad:

    I take the abortionist's stand...Kill 'em all and let God sort 'em out.

  7. the other coyote:

    I agree that the death penalty is not much of a deterrant, because perpetrators are no longer hanged or beheaded or faces a firing squad in the public square. My opinion of the death penalty is if you're going to take a life for killing, we're talking about retribution by society. Giving the person a basically private drift off into sleepy time isn't doing anybody any good except the convicted (who, if we're talking retribution, doesn't really deserve it) and the conscience of the person who is hired to actually take that life. My old roommate, a surgeon, tells me that lethal injection is actually even less painful than how dogs are put to sleep.

    With the advent of DNA testing, mistaken identity cases SHOULD, going forward, be a thing of the past. I'm not saying they will be; prosecutorial misconduct will probably lead to either to planting evidence or to manipulating or flat out falsifying DNA evidence. Sort of like how the art of fingerprinting has become an irrefutable science. Gee, sounds like another "science" we are all familiar with.

    The western world's criminal justice system can't decide whether it wants retribution or rehabilitation as the focus of its mission. We try a little of both, and in my mind, are unsuccessful at both. We do little more, as a society, than warehouse lots of bad people, at an extraordinary cost, for an inadequate amount of time.

    Certain people have proven that they cannot live in society with the rest of us. Once they've forfeited that right, what should we do with them? My personal vote is for the Quaker model of the penitentiary; lock somebody in a room, by themselves, with a Bible until (1) they change or (2) they die. We could try to the Islamic world's model of swift public retribution. The issue there is Warren's largest issue: how do we really, really know who's guilty? Which leads to a larger issue -- why lock anybody up if there's some doubt?

    The adversarial system isn't perfect, but it's the best we've got. And it's far better than the inquest system practiced throughout most of the rest of the world. Without getting into a giant epistemological debate, if we can't ever really "know" whether someone is guilty, all we can really do is hope ordinary Joes on juries can fairly and accurately determine guilt and innocence, which seems to happen in the vast majority of the cases.

    For those opposed to the death penalty on moral grounds, read the facts of Roper vs. Simmons sometime. If there was ever anybody who deserved the death penalty, it's Christopher Simmons, and I don't give a rat's ass if he was 5 years old when he committed the crime. He is (living, thanks to Justice Kennedy) proof that there really is evil in the world, and there really is such a thing as a bad seed. My personal opinion is somebody who can do what Christopher Simmons did cannot be rehabilitated. So what do we, as a society, do with him? Let a vigilante give him what's coming to him? Warehouse him? Why should we pay to keep evil alive? Is it because "justice is mine, sayeth the Lord?"

  8. Mossberg:

    I disagre. What I find absurd is locking people in cages for decades and paying for it with taxpayer money. I don't see how the execution of innocents is too grievous an action to engage in but keeping them in cages for decades is acceptable. Of course, I doubt my view of death is similar to, well, anybody's. Aside from that, the prison system needs to be abolished for a variety of other reasons. I feel that the only punishments that the justice system should be able to dole out are restitution for the victim, short jail sentences, and execution. However, I wouldn't dare advocate the implementation of such a system without a complete overhaul of the justice system and, preferably, government in general beforehand.

    p.s. Prosecutorial misconduct should be a capital offense... all else equal, that works out to about 50 dead prosecuters a year. I could live with that.

  9. steve:

    Please provide an example - one will do - of an innocent person, here in the U.S.A., who was executed.
    Good luck.

  10. SSFC:

    Ethel Rosenberg. Julius was guilty, but Ethel wasn't.

  11. Craig:

    Maybe not guilty of a capital crime, but she wasn't completely innocent.

    Some sort of trade-off should be made. Limit the death penalty to cases where there is DNA evidence or confession, but make the administration of the penalty much faster in those cases.

    Another problem we have, I think, is juries. We seem to end up with the lowest common denominator, since the people who actually know what's going on in the world never make it onto the panel.

  12. SSFC:

    "Maybe not guilty of a capital crime, but she wasn't completely innocent."

    She wasn't guilty of conducting atomic espionage for the Soviet Union, and that's what she was executed for. At most she was guilty of knowing what her husband was doing, and failing to turn him in. Well, to hell with that. The same Soviet Union that she was convicted of spying for shot people for failing to turn in relatives, and named children as heroes for turning in their parents.

    If the Ethel Rosenberg sentence reflected actual law in the United States, as opposed to an aberration, I'd be sorry the Soviets lost. As it stands, it was an aberration, but Ethel's not the only one who's been wrongly executed.

  13. dn:

    "What I find absurd is locking people in cages for decades and paying for it with taxpayer money."

    After you add up all the court costs from the endless appeals, isn't it more expensive to execute someone than to keep them imprisoned for life?

  14. Jaguar in Ohio:

    I suggest that the last thought on most folks' minds before unlawfully killing another, is the death penalty. Yes, there are SOME who are just plain evil --- that's why I used "most."

    Innocent executed? how about the chap in Texas executed for an arson-murder when there was no arson?

    Too many death row or life "felons" have been exonerated for the simple reason that they did not commit the crime for which the were accused, tried, convicted and sentenced.

    I know of a man who was convicted of a felony, yet was innocent. He had a fair trial, but the jury did not believe him. The conviction of course was affirmed.

    Confession? Who do you want to confess and what do you want to what event do you want that person to confess. I can have a signed confession to you in under a week wit5h NO physical torture. You pick the media form.

    DNA? Perhaps. As long as chimera (dual DNA) is not involved.

    As it presently exists, I do not believe the death penalty is the answer -- it certainly is not the panacea.

    2008-12-20-7 0906 -0500

  15. tehag:

    I’m opposed to parole, time off for good behavior, etc. not because I don’t think that some criminals can reform. I’m opposed to them because I don’t think the government is capable of administering them fairly, competently, and with adequate protections to prevent criminals from committing additional crimes on innocent persons.

    Though I'm in favor of the death penalty, I'll happy make the trade: no death penalty for no parole, life imprisonment for murder, no time off for good behavior, no furloughs, no half-way houses, or any other of the idiotic means the government uses to release criminals to prey on the citizens it is charged to protect.

    As long as the government is determined to release criminals such as Kenneth Allen McDuff, the death penalty is the only solution.