The Death Penalty

[Aabraxan]

And now a post purely for seeing what everyone's reactions are:

The Eighth Amendment to the United States Constitution reads as follows: Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

Does that mean that a punishment is prohibited only if it is cruel and unusual. In other words, if a State decides to reinstate drawing and quartering, and implements this punishment frequently, does it take drawing and quartering outside the scope of the Eighth Amendment prohibition because the punishment then becomes cruel but not unusual?

[Cyclotron]

Originally posted by GameGeek
And now a post purely for seeing what everyone's reactions are:

The Eighth Amendment to the United States Constitution reads as follows: Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

Does that mean that a punishment is prohibited only if it is cruel and unusual. In other words, if a State decides to reinstate drawing and quartering, and implements this punishment frequently, does it take drawing and quartering outside the scope of the Eighth Amendment prohibition because the punishment then becomes cruel but not unusual?

Unusual does not refer to how often the state employs it. It refers to how unusual the punishment is given how America, or alternately the rest of the world, punishes people and views punishment. As to whether the punishment can be one and not the other, I wouldn't worry too much, as they typically go hand in hand.

[Aabraxan]

I know. And I don't seriously believe that any supreme court would interpret the 8th Amendment that way. I'm amused by the hypertechnical legal argument to be made in favor of that stance, but I'd be truly appalled if a court ever held that a cruel punishment (within the meaning of the 8th) was permissible if the State did it frequently. Besides, the State'd still have to get that first cruel punishment past the appellate review.

[Terra Nullius]

Originally posted by Cyclotron
I'll qualify what I said; it may be possible to rehabilitate one

Yeah, I'm happy to go with that.

I have a problem with saying person xyz can never be rehabilitated. I just can't see any logical basis to support it.

It leads to really weird logic. Like, if some people can never change a given behaviour, we would expect to see some people who are never able to stop brushing their teeth, or eating ice-cream or (god forbid) posting half-baked opinions.

Alternatively, it suggests that if 'normal' humans can change but a certain class of people cannot, then those people must be somehow different to or "less human" than the rest of us. It's easy to categorise "serial killers" as fundamentally different from the rest of humanity. But that sort of logic has been tried before, and it tends to produce some rather nasty consequences.

I really don't see any basis for an "us and them" mentality here. People sometimes f_ck up. That doesn't make them any less human than you or me.

On the other hand, I can understand having a utilitarian position - person xyz may be capable of rehabilitation, but they have shown no desire to do that and /or the cost of rehabilitation is too high.

To borrow an analogy from car insurance, perhaps, at a certain point, the person's "rehabilitation cost" exceeds their "write-off value." At that point, society has to decide whether it is reasonable to pay the cost of rehabilitating a given person or not.

I don't really I agree with that idea either, but at least it seems to have some logical basis.

[Terra Nullius]

@ GG
I have to say, I still find the whole idea of jury sentencing totally screwy.

It just seems wrong to me. The jury should be there to decide on the person's guilt (or not). A jury is just not competent (imo) to decide on complex sentencing issues. That should be left to a judge, who has experience of the whole profession and history of sentencing.

That's one thing I noticed with the question of rehabilitation. Imo, the jury should never be asking whether the person can be adequately rehabilitated. That is a matter for the judge to decide when handing down a sentence.

I presume this is part of the reason it comes into the debate here. Are Texan juries responsible for sentencing as well?

[Agathon]

Opinions on the death penalty are somewhat like opinions on abortion. They tend to be very personal, dearly held opinions.

Which does nothing to alter the fact that the conservatives are full of the brown stuff on both issues.

[Wycoff]

Originally posted by Agathon
Which does nothing to alter the fact that the conservatives are full of the brown stuff on both issues.

..says an impartial and unbiased source...

[Urban Ranger]

Originally posted by GameGeek
For all of the talk about "the system" imposing the death penalty, that's not quite accurate. It's jurors who impose the death penalty, not "the system."

Without "the system" allowing for such an option, a jury can't hand out DP.

[Urban Ranger]

Originally posted by Sava

Why? Can't I look at both sides?

Originally posted by Sava
First, there is absolutely a justification. They commited a violent, heinous crime and have been found guilty beyond a reasonable doubt.

The only justification of applying such a punishment is vengeance. You surely aren't helping the society in anyway.

Vengeance is a bad justification however, since you are going to open the gate for vigilante justice.

Originally posted by Sava
Second, if there is no justification for putting them to death, then how could there be a justification for doing something that, in your words, is more of a punishment?

Bah.

I was merely pointing out that, as punishment goes, DP is overrated. If you really want to punish some person, let him rot in a hole.

[Cyclotron]

Gamegeek

Well, I never said "in large part," but the ick factor is clearly relevant the jury. And I will concede that the jury's revulsion may frequently be a big part of their decision. But don't underestimate juries. They're probably terrified at the prospect of imposing the death penalty and later finding out that they were wrong.

I wouldn't overestimate them either. There are planty of people I know that treat the issue very lightly - not really deserving of things like life. I'm sure it wouldn't bother them much.

Also, that "ick factor" is one of the ways that the jury determines whether or not the DP is the proper penalty, just as it does with any other criminal penalty...

I'm aware of that. I just think it's a poor way to dispense justice.

There's more to a penal system than just preventing future crime. There's also the punitive element for the offender, and segregation from society. I question whether or not the deterrent effect can be effectively studied simply because of the nature of the question. Are there potential offenders out there who did not commit crimes because of the possibility of the death penalty? Maybe. If so, how do we find them to determine if the DP was a factor in their not committing said crimes? The only ones we can find to study are those who were not deterred by the DP.

I share Agathon's view on this - except in cases where restitution can be made, the only purpose of the penal system should be to prevent future crime. All other purposes generally reduce to vengeance.

As far as the question of deterrance, I believe the factors involved in crime are too complex for us to properly evaluate that question now. We may never know how well it actually deterrs, and presently it is useless to bring up the question.

Terra Nullius

Yeah, I'm happy to go with that.

I have a problem with saying person xyz can never be rehabilitated. I just can't see any logical basis to support it.

I'm approaching this from a realist angle - if we don't know how to rehabilitate someone, it can't be done. That's a poor way to practice science, but a good way to run a justice system, as long as you are open to new developments in the future that change that.

It leads to really weird logic. Like, if some people can never change a given behaviour, we would expect to see some people who are never able to stop brushing their teeth, or eating ice-cream or (god forbid) posting half-baked opinions.

I see you have not been on Apolyton long.

Alternatively, it suggests that if 'normal' humans can change but a certain class of people cannot, then those people must be somehow different to or "less human" than the rest of us. It's easy to categorise "serial killers" as fundamentally different from the rest of humanity. But that sort of logic has been tried before, and it tends to produce some rather nasty consequences.

They're only "less human" insofar as they are psychotic. Your posts about this have basically amounted to strawmen so far - nobody has claimed that they were inhuman, and I don't believe that the assertion that their behavior cannot be corrected allows this jump in reasoning.

I really don't see any basis for an "us and them" mentality here. People sometimes f_ck up. That doesn't make them any less human than you or me.

First of all, serial killers do not just "f*ck up." It's not an accident. They do not suddenly realize, sitting in court, "oh sh*t - why'd I do that? I really f*cked up."

Secondly, here's your strawman again. Nobody is claiming that they are less human than you or me.

On the other hand, I can understand having a utilitarian position - person xyz may be capable of rehabilitation, but they have shown no desire to do that and /or the cost of rehabilitation is too high.

To borrow an analogy from car insurance, perhaps, at a certain point, the person's "rehabilitation cost" exceeds their "write-off value." At that point, society has to decide whether it is reasonable to pay the cost of rehabilitating a given person or not.

I don't really I agree with that idea either, but at least it seems to have some logical basis.

Rehabilitation, IMO, is worth more than just money - bringing somebody back into functional society is a wothwhile endeavor that should be part of the business of the state. Protecting society, however, must trump rehabilitation - and if we cannot be reasonably sure that somebody really is rehabilitated, we must err on the side of protecting the innocent. In the case of serial killers, the number who have been "rehabilitated" is extremely low, possibly nonexistant - making attempts to rehabilitate them and restore them to a normal life out of the question for a justice system interested in the protection of citizens foremost.

[Aabraxan]

Originally posted by Terra Nullius
@ GG
I have to say, I still find the whole idea of jury sentencing totally screwy.

It just seems wrong to me. The jury should be there to decide on the person's guilt (or not). A jury is just not competent (imo) to decide on complex sentencing issues. That should be left to a judge, who has experience of the whole profession and history of sentencing.

Well, the jury hands down the sentence, which can then be set aside either by the trial judge or on appeal. Also, AFAIK the judge instructs the jury on the law. The jury is told the range of possible penalties, and hands down a sentence. So it's not like the jury just wakes up on the wrong side of the bed and sentences some poor guy to death. Besides, were I in criminal defense, I'm not sure I'd rather have my client sentenced by a judge than a jury. Some of those guys get pretty jaded after a century or two on the bench.

Are Texan juries responsible for sentencing as well?

Dunno.

[Aabraxan]

Originally posted by Cyclotron
I wouldn't overestimate them either. There are planty of people I know that treat the issue very lightly - not really deserving of things like life. I'm sure it wouldn't bother them much.

I don't think I overestimate juries. Right, wrong or indifferent, the criminal defendant is entitled to a jury of his peers, though. And the death penalty, of course, should never be treated lightly. As has been repeatedly noted in this thread, DP qualitatively different from other sentences. It's a mistake that can't be undone.

I'm aware of that. I just think it's a poor way to dispense justice.

But do you think judges have any less of an "ick reflex" than juries? If the question were purely based on a jury's revulsion, I'd agree. But I don't think it is. Now, the jury may decide on a harsher penalty, rather than a lighter one, based on that ick factor. But that's the case regardless of whether we're talking about a capital case or not.

I share Agathon's view on this - except in cases where restitution can be made, the only purpose of the penal system should be to prevent future crime. All other purposes generally reduce to vengeance.

As far as the question of deterrance, I believe the factors involved in crime are too complex for us to properly evaluate that question now. We may never know how well it actually deterrs, and presently it is useless to bring up the question.

As a practical matter, how do you separate the punitive aspect from the deterrent aspect? Aren't they awfully closely intertwined?

[Aabraxan]

Originally posted by Cyclotron
Rehabilitation, IMO, is worth more than just money - bringing somebody back into functional society is a wothwhile endeavor that should be part of the business of the state.

Absolutely.

Protecting society, however, must trump rehabilitation - and if we cannot be reasonably sure that somebody really is rehabilitated, we must err on the side of protecting the innocent. In the case of serial killers, the number who have been "rehabilitated" is extremely low, possibly nonexistant - making attempts to rehabilitate them and restore them to a normal life out of the question for a justice system interested in the protection of citizens foremost.

There certainly seem to be certain classes of criminals who are more prone to re-offend than others. The rehabilitation of sexually violent predators and serial killers seems to be almost impossible. The recidivism rates among those classes seem to be exceptionally high compared to other classes.

[SlowwHand]

quote:
Are Texan juries responsible for sentencing as well?

In Texas, the defendant has the right to either a jury trial, or a trial before a judge only.
Should the defendant choose a trial before the judge, naturally the judge hands down the punishment.

If the defendant chooses trial by jury, it's also the defendants right to ask for sentencing by the jury, or that the judge makes the decision on punishment.

I saw the comment that a judge may be jaded after many years on the bench.
That's not exactly correct.
The judge may, or may not, see it as a black and white issue. (Not a racial statement.)
An individual juror may see the inside of a court only this one time in their life.
They very well may decide with tinges of emotion, that one would hope(?) a judge would set aside.

In any event, how the trial is conducted, and how the ruling comes down, is strictly the right of the defendant to decide prior to going to trial.

All said, we do have a very fair methodology to the trial system.

[Fake Boris]

Originally posted by GameGeek
There certainly seem to be certain classes of criminals who are more prone to re-offend than others. The rehabilitation of sexually violent predators and serial killers seems to be almost impossible. The recidivism rates among those classes seem to be exceptionally high compared to other classes.

This is 100% false.