I can chart a fairly clear path over time as I have moved from a fairly mild Old Testament view of the death penalty to a fairly hard line opposition. Part of that I can attribute to an evolving focus from the relative balance between punishment and rehabilitation. I have few illusions about the chances of rehabilitation but a greater commitment to it than in the past. But the real driver of the evolution of my thought process has been increasing skepticism of the capability of the government/judicial system to reliably drive out error in the judicial process so that there is zero chance of a false positive - convicting someone of a crime they did not commit.
It is not just a proportionality issue. Is there an acceptable error rate? 10% false convictions? 1%? 0.1%? Obviously you want the answer to be effectively zero but there are always trade-offs. The lower the rate of false convictions, the greater the number of guilty will be returned to society to prey on innocent victims. However, once you recognize that there is always a rate of acceptable false positive convictions, then you have to confront two issues. First is the possibility of restitution. There is no real compensation for years of life incarcerated falsely. We find a number and make the payment but it is not much more than a salve for a guilty conscience. The real issue is when your punishment forecloses the possibility of restitution. What happens when the convicted party has been executed but is then found to have been innocent (see Trial by Fire: Did Texas execute an innocent man? by David Grann in the New Yorker for an example).
To some extent, the moral decision making is forestalled once you acknowledge the potential for erroneous decisions (see also The Price of a Life by Ariel Levy). This ties into yet another issue. Once you acknowledge how prone the system can be to false positives, you have to also acknowledge that that system can also be manipulated to yield false positives. In other words, opposition to the death penalty is one more brick in the wall standing in the way of government overreaching.
That's the rough path I have travelled. I oppose the death penalty for both moral and practical reasons and the practical reasons are probably the more motivating.
Yesterday's news reports covered the first trial of the Boston Marathon bomber, Dzhokhar Tsarnaev - Guilty on all counts. As they report, there was no real question of his causal role in the crime. He did it. Now all that remains to be determined is the sentencing phase. Death penalty or prison? My intellectual mind says obviously prison for the principled reasons already arrived at covering all instances of execution. My emotional response is more Old Testament: he took two lives and marred hundreds of others. Execute him.
Thinking it through, I think this is an example of "extreme cases make bad policy." I think my position remains correct no matter how much it feels desirable to make an exception in this case.
The other case in the news is similar in calling for a reconciliation between mind and heart.
There was a shooting a couple of days ago in Charleston, South Carolina. Social Justice Warriors, abetted by the national media, have been propagating the notion that the US is some deeply racist society and more specifically that there is some form of war of police on African-Americans. It doesn't matter what the empirical evidence indicates, it is a faith-based belief that they have been advancing for years. But they have been advancing deeply flawed and problematical examples.
In the past few years we have had a sequence of examples brought to national attention of white police officers fatally shooting African-American males with police records violently resisting arrest (Eric Garner in New York and Michael Brown in Ferguson) or of White Hispanics (to use the New York Times' bigoted nomenclature) shooting their assailants when attacked (Trayvon Martin). In all these cases the journalist advocates wanted to focus on race while ignoring more consequential issues that need addressing.
But the real issue I have had in all these cases is the rush to judgment. Darren Wilson, the police officer in Ferguson, was publicly tried and convicted in the public forum of executing a surrendering and pacific black suspect. Until the Department of Justice exonerated him and confirmed his original account of being violently attacked by a suspect. George Zimmerman was publicly condemned for stalking and assassinating an innocent black teenager for no reason other than sheer racism. Until the Department of Justice confirmed that he was actually defending himself from violent assault by Trayvon Martin.
In all these cases there is a media rush to judgment based on the media's preferred bigotry against police and others.
In every instance, my response has been 1) Let's wait till we have at least some reasonably complete representation of the facts before forming a judgment, 2) Let's wait till the justice system does its job, and 3) Let's look at all the other information that lends contextual knowledge to this issue. For example, white officers are not only shooting black males. They are shooting white males as well. And you have black officers shooting white males. And you have officers of all colors being shot by perpetrators resisting arrest. And you have orders of magnitude greater volumes of officers injured by suspects.
This isn't an issue of race. It is an issue of officer training. It is an issue of inadequate mental health care. It is an issue of substance abuse. It is an issue of abusing the criminal justice system in order to fund governmental coffers. By focusing on the usually tangential issue of race, the press and advocates draw a veil over the real root causes, insuring that no progress is made or actions are taken that actually make the situation worse.
But fundamentally my plaint is: Wait for the facts.
Then there's the North Charleston shooting captured on videotape. An officer does a traffic stop for a broken taillight. The driver, with outstanding warrants, makes a run for it. The officer deploys his Taser without effect. And then shoots the suspect five times in the back as he is running away.
The police officer has been promptly arrested, charged with murder, and fired from the police force. All of which feels right. But what to do about those principles. Wait for the facts, no rush to judgment.
Even in a case like this, damning as it appears, perhaps there is a mitigating factor. I doubt it, but surely we should wait and see before automatically condemning the accused officer.
It is marginally like a similar shooting in Pennsylvania. Again, a traffic stop, this time for expired tags. Again, the suspect immediately attempts to flee. White female officer tases an older white man resisting arrest. While standing over him, she then fires two shots into his back, killing him.
David Kassick, hit by a Taser, was on the ground on his stomach. Hummelstown police officer Lisa Mearkle stood behind him, a Taser in one hand, her pistol in the other. Then she shot him twice in the back.What happened? In this case, as in most (despite the notion that the press and advocates try to advance), race wasn't an issue. So what else? Poor training? Officer impairment? Simple bad judgment? Adrenaline? I have no idea. As with the North Charleston case, it seems open and shut.
But wait for all the facts. I can't imagine anything mitigating arising in the North Charleston case, but all knowledge is contingent and we have to wait and see. In the Pennsylvania case, I can, at a stretch, conjure up a scenario based on the fact that the officer had a taser in one hand and simultaneously a gun in the other. I suppose there is a remote chance that in the heat of the moment, she confused the one for the other, intending to re-tase the suspect but accidentally shooting him. Much like how drivers occasionally mistake the accelerator for the brake and go plowing into other cars.
Wait for the facts just makes common sense, but you can't help but feel like the mob judgment in the North Charleston case is actually the right judgment. But you should still wait. It is what we think we know but don't which always surprises us the most.
UPDATE: Further evidence - CSI Is a Lie: America's shameful system of forensic investigation is overdue for sweeping reform. by Conor Friedersdorf
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