Fallibility Cannot Be Escaped

If Earl Warren and Albert Camus fought George Washington and Abraham Lincoln, who would win?  That’s the question posed by Bill Otis in his rejoinder to George Will’s conservative case against the death penalty.  It’s rather surprising to learn that Otis is so on top of internet memes.

But first, the lead-in comes from no less an interested party as Paul Cassell at Volokh Conspiracy, who writes:

George Will recently wrote an op-ed in the Post, advancing the “conservative case” against the death penalty.  My friend Bill Otis has written this strong response.

This is noteworthy only for its indication of Cassell’s tacit endorsement of Otis’ obsession with making the trains run on time.  Will begins with the assertion that capital punishment is withering away in America, and offers a “threefold” justification for the conservative case against the death penalty, as reflected in dark red Nebraska’s effort to abolish it.

First, the power to inflict death cloaks government with a majesty and pretense of infallibility discordant with conservatism. Second, when capital punishment is inflicted, it cannot later be corrected because of new evidence, so a capital punishment regime must be administered with extraordinary competence. It is, however, a government program. Since 1973, more than 140 people sentenced to death have been acquitted of their crimes (sometimes by DNA evidence), had the charges against them dismissed by prosecutors or have been pardoned based on evidence of innocence. For an unsparing immersion in the workings of the governmental machinery of death, read “Just Mercy” by Bryan Stevenson, executive director and founder of the Equal Justice Initiative.

Third, administration of death sentences is so sporadic and protracted that their power to deter is attenuated. And the expensive, because labyrinthine, legal protocols with which the judiciary has enveloped capital punishment are here to stay. Granted, capital punishment could deter: If overdue library books were punishable by death, none would be overdue. But many crimes for which death is reserved, including Tsarnaev’s crime of ideological premeditation, are especially difficult to deter.

Otis, like a mosquito buzzing around Will’s ear, needs to sting.  After demonstrating his lack of appreciation of cultural norms a few hundred years ago, by conflating George Washington’s slaveholding rejection of a title and acceptance of execution as punishment, he gets to a point:

And no one takes the government to be infallible.  No one thought it infallible (merely plainly in the right) when the government declared wars, including WWII, that killed exponentially more people, and exponentially more innocent people, than the death penalty ever has.  We fought, knowing in advance that thousands would die  —  many of them adventitiously or from sheer stupidity or mistake  — because the nation judged it worth the candle.

That is the test Will misses.  The question is not whether X government program is infallible.  The question is whether, knowing that it (and all other fallibility) cannot be escaped, the risk of error is so small and the reward to justice so large (as with Tsarnaev and McVeigh) that the benefits are worth the risks.

Good people die all the time as a result of government programs, so what’s the big deal with a few good ones being executed by mistake?  It’s a risk/reward issue, and Otis’ value judgment is that risks are small and rewards are large. Kill ’em.

Much of this answers Will’s next objection  —  that if we execute an innocent man, the error is irretrievable.  That is true, of course, but if (for example) we continue to travel by train, innocent people are certain to die, as they did two weeks ago, and just as irretrievably.

No one suggests, however, that we give up train travel, although it unlike justice is merely a convenience.  What they suggest is that we do what we can to make it safer. They propose this although the improvements are likely to cost a lot of money and still won’t make it infallibly safe.

If we’re going to refuse to put money into improvements in train safety, thus putting innocent people’s lives at risk, why then get all bent out of shape about executing the occasional innocent guy?  We make choices, money versus lives, and money wins.

And as an aside, Otis tosses in this bit on the cost side of the equation:

Finally, Will points to not a single execution of an innocent person in the last fifty years. That’s because, so far as any neutral authority had been able to determine with any degree of assurance, there has been none.  That does not make the risk of executing an innocent disappear, but it does make it vanishingly small.

Most would say that Will had no need to “point” to the obvious, but when it’s not obvious, as anything involving the execution of innocents like Todd Cameron Willingham, for example, to a guy like Otis, and fails to meet his personal standard of proof, then the risk is “vanishingly small.”

And on the benefit side of the ledger?

The deterrent value of the death penalty is much debated; the majority of (but not all) studies say that it does have deterrent value, although (as Will correctly points out) not as much as it would if imposed more frequently.

But to say that it would have more deterrent value if imposed more often is an odd argument that it should not be imposed at all.  It also simply walks past the two more frequently cited reasons in its favor:  That, for some especially grotesque murders, it’s the only punishment that fits the crime; and that it’s the only certain means of incapacitating the killer.

Aside from mischaracterizing Will’s deterrent point, that its effect only applies under limited circumstances (“If overdue library books were punishable by death, none would be overdue.”), Otis resorts to his own values again, “the only punishment that fits the crime,” because it just feels right to him.

On one point, even I have to agree with Bill Otis’ (and his patron, Paul Cassell’s) view, fallibility is inevitable. Otis’ takeaway is that this is a reason to shrug, close one’s eyes really tight and push the plunger, because killing is his right “fit.” Thoughtful conservatives, on the other hand, would avoid such emotional indulgence to avoid the unjustified cost in innocent lives and expense for the visceral thrill of killing people you hate.

And as for the fight?

Will ends his essay by citing Earl Warren and Albert Camus for the point that “evolving standards of decency” would never tolerate the “spectacle” of executions.  Is that true?  Wasn’t it precisely evolving standards of decency that tolerated  —  indeed demanded  —  the executions of Nazi war criminals?  Will never tells us.

He can have Earl Warren and Camus.  I’ll take Washington and Lincoln.

Godwin’s law. Otis loses.

9 thoughts on “Fallibility Cannot Be Escaped

  1. bacchys

    In the abstract I support the death penalty. Some crimes are so heinous that it is the closest we can get to justice.

    But we don’t execute in the abstract, and our criminal justice system has shown it’s insufficiently reliable to ensure we don’t execute the innocent. Otis’s idiocy aside, Willingham was innocent of the crime for which he was executed. The FBI Crime Lab lied in over 90% of the cases surveyed in a recent review, and 12 of those cases in which they lied have led to an execution.

    For the Otis’s out there who think the reward is worth a few wrongful executions, I invite them to volunteer to be the price paid…

  2. brad

    The death penalty will not be abolished- ever. If history is any indication the government, political and criminal classes will employ it as circumstance demands regardless of the law. If the 20th Century taught us anything it is that human life is cheap. Death is death; who can take it and under what circumstance adapts to temporal circumstance.

    1. SHG Post author

      Is there any purpose to your comment aside from personal narcissistic masturbation? What could possibly make you think writing “the death penalty will not be abolished- ever” makes any difference to anyone ever?

      1. Dave

        Michigan was the first English speaking government to abolish the death penalty. That has been taken as a point of pride such that even the die hard conservatives have accepted that our state will never have the death penalty. Who knows if that will always be true but it does show that the notion of abolishing the death penalty is well within the realm of possibilities even with the u.s. and even with conservatives. Of course, Wills column already showed that to some degree.

      2. brad

        I thought I’d explain it to but decided to save my time and yours. Oh, you need to modify your comment guidelines ” please keep it civil and respectful.” seems to be out of date

        Best Regards,
        personal narcissistic masturbater

        1. SHG Post author

          Jeez, you’re probably the first person who got smacked for a pointless dopey comment to point that out, cluelessly missing the aspect that you were, until now, a guest in my house. I don’t care whether you agree with me or not; if a comment is self-indulgent crap, it’s crap.

          Try a subreddit where you’re more likely to get a tummy rub for your fascinating personal insights. This is a law blog, and it’s really not right for you.

          1. Myles

            Will you ban the non-lawyers already? Please? Must every post be reduced to this level of idiocy before you kick them out?

            1. Dan

              This doesn’t have the non-lawyer smell. This guy’s butthurt is SJW, as was his original comment. Leave the non-lawyers alone!

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