Behind every exercise of law stands the sheriff – or the SWAT team – or if necessary the National Guard. Is this an exaggeration? Ask the family of Eric Garner, who died as a result of a decision to crack down on the sale of untaxed cigarettes. – Stephen Carter, Yale Law School
In recent decades, Western countries have evolved toward the idea that execution is barbaric and has no place in civilized society. Not that none of us ever nurses the desire to see someone hateful put to death, but as a formal political matter we generally no longer wish the government to liquidate criminals on our behalf. Most states in the American Northeast and Midwest have abandoned executions, and most of the rest have moratoria that block lethal punishment.
Thus the harshest penalty we would likely tolerate is life imprisonment. Yet even if every state banned capital punishment, there would still be sanctioned killings, in public, of citizens, performed by government officials. These killings would take place without recourse to the courts, and they would happen suddenly and “on the fly”, and they would be perfectly legal.
Such slayings occur all the time, but few of us even think twice about it. What’s more, these are deaths none of us would approve were they proposed in court as penalties.
Let’s say some guy likes to inhale a drug that’s been ruled illegal, and the cops get a complaint and show up at his doorstep to investigate, and they look through the front window and see the guy in his living room smoking the drug, so they pound on the door and shout, “Police! Open up!” and he yells, “No way, pigs!” so they break down the door and try to tackle him, but he fights back, wrestles with an officer for his gun, and they shoot him to death.
Well of course they did, because he grabbed one of their weapons, so the killing was in self-defense. The problem is that he died because he was doing privately something for which no one would ever want to execute him.
An old prospector lives quietly out in the boonies, but an official rules that his crumbling cabin is not up to code, so a sheriff’s deputy drives out to deliver an eviction notice, whereupon the prospector steps out onto the porch with a shotgun and points it at the officer, who pulls his own weapon and fires. Nice quick-draw! Justifiable homicide. RIP prospector.
You may object, “But no sane person would resist the police! This isn’t a problem except for crazies.” Exactly. It rarely happens precisely because we know the cops can shoot us if we resist. The penalty is there all the time; that it’s rarely used speaks to its sheer power to enforce behavior.
We recoil, of course, at abuses of this law enforcement prerogative, as with the asthmatic man who sold single cigarettes in contravention of a New York City law and ended up dead on the sidewalk from a police choke hold. Or the elderly lady in Atlanta who, fearful of violent drug gangs in her neighborhood, was quick to fire on a group who invaded her house, but who turned out to be local police breaking down the wrong door. (She lost the gun battle and is no longer with us. After realizing their error, the police tried to frame her with planted drugs, but that story soon fell apart.)
We can look at examples all day, but the point is that, no matter what law we pass, automatically we attach to it a potential death penalty for anyone who resists enforcement. This can arise with any statute that empowers police to detain suspects. And virtually every law contains that power. Public intoxication. Loud parties. Cigarette in a restaurant. Illegal left turn.
This isn’t the fault of the constabulary. What else are they going to do in these situations? It’s the nature of the beast. But we put the police in the uncomfortable position of having to use force, or its threat, not just to capture hardened criminals but to deal with every little petty lifestyle aberration we’ve seen fit to criminalize.
The next time you’re deeply offended by someone’s behavior, and you urge support of a law against that behavior, remember that you are also sanctioning the immediate killing of violators, should they vigorously resist detention. We are fools to pretend that our pet ordinances against, say, plastic bags or topless bathing do not contain a real threat of death.
With that in mind, we ought only to pass codes that forbid conduct so dangerous that the rest of us feel peril for our own lives. This rules out laws against things that merely bother or irritate us. And that’s most laws.
So, yes, there’s still a death penalty on the books. And it will never go away. We should use it sparingly.
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UPDATE: Dispense a plastic straw, go to jail
UPDATE: “…Every law is violent. We try not to think about this, but we should. On the first day of law school, I tell my Contracts students never to argue for invoking the power of law except in a cause for which they are willing to kill. They are suitably astonished, and often annoyed. But I point out that even a breach of contract requires a judicial remedy; and if the breacher will not pay damages, the sheriff will sequester his house and goods; and if he resists the forced sale of his property, the sheriff might have to shoot him.” — Stephen Carter, Yale Law School [login required]
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Robert I. Schwartz AI
2015 March 6
JIM:
As you know, I share your qualms regarding the role and too-broadly exercized powers of the constabulary, as policing is practiced (or malpracticed) in our United States.
As to the very limited subject of the death penalty; on an emotional level we would all like to see little creepy monsters like Dzhokar Tsernaev (the surviving Boston Marathon bomber) paid back in kind for their crimes per the primitive admonitions of the Old Testament, but that is just an understandable emotional reaction – a strong wish for REVENGE. However, the purpose of (and justification for) the criminal justice system is NOT to dispense REVENGE, but rather to dispense JUSTICE, which is an abstract (and – ideally – entirely unemotional) concept.
It isn’t as though Tsernaev does not DESERVE to be slowly boiled in a giant vat of Siracha sauce with the fire stoked by his injured victims and the bereaved survivors of the deceased; he certainly does. Personally, I would be happy to light the match to ignite the flames under that kettle, but that is just the expression of a justifiable wish for righteous REVENGE, not the application of JUSTICE.
In the modern era there is no doubt that, statistically speaking, the application of the death penalty is both “cruel and unusual”, except perhaps in the regressive case of Texas, at least for as long as their existing political power structure can keep their future Latino majority disenfranchised.
[Parenthetically; Texas is especially infamous for applying the death penalty to people (mostly minorities) who are later proven forensically to have been factually innocent – a very clear indication of the frequent fallibility of their judicial processes. One lesson is that we can’t trust the state’s criminal prosecutors (especially the politically ambitious types) nor the judiciary to be perfect in their dispensation of a form of judicial penalty that is inherently non-reversible, ever.]
A sentence of Life in Prison, in solitary confinement, without any possibility of parole would be the next-best sentence for the likes of Tsernaev. This sentence would be very harsh, and very long and painful – but not to the extent of being actually cruel or unusual under the circumstances. It would avoid the possibility that Tsernaev could be turned into some kind of inspirational Islamic Radical martyr. It would be a just sentence upon Tsernaev as an individual, commensurate with the magnitude of the crime. He would be unable to ever commit any further crime, thus satisfying the need for the justice system to help ensure public safety in the future tense. And, it would cost a lot less than the alternative of all of us having to pay the huge additional costs (lawyers, court costs, security) for going through the charade of multiple appeals regarding (among other angels-on-a-pinhead issues) the limited availability of which specific drugs would actually be used to kill him.
Closer to home; California there are several hundred prisoners on Death Row, most of whom DESERVE to be wasted, but the reality is that (after many tortuous and hyper-expensive legal appeals) most prisoners will die of old age rather than via actual execution of their death sentences.The fact that so many hundreds of millions of taxpayer dollars are spent annually by our State Government to absolutely no good purpose (there have not been any executions at all for several years) entirely obviates the entire special process and the effectiveness of the applicable criminal statutes.
Recognizing how insupportably costly and unviable the entire process has become, many states have already moved to eliminate the death penalty, along with restrictions upon gay marriages and the private use of marijuana (all useless and effectively unenforceable statutes). I think that it will only be a few more years (say, ten at most) before California follows that same pattern. My personal prediction is that Gavin Newsome will be the next
Governor and that he will simply commute (to life sentences) the judgments upon all of the existing death row inmates. A successful statewide initiative will follow thereafter, to get rid of the enabling criminal sentencing statutes forever.
At the point where an overwhelming majority of states have eliminated capital punishment as a sentencing option then the recalcitrant Federal Government will eventually adopt the same stance and thus finally quit the shrinking club of odious nations (Iran, North Korea, China, etc.) that still indulge in this regressive penal practice.
Robert I. Schwartz AIA
Jim Hull
2015 March 6
— Life in prison: I’ve long been of the opinion that several decades in the pen is more punishing than a quick death by execution. Eventually some attorney will argue successfully that long sentences are “cruel and unusual”, and then I don’t know what.
— Death penalty and gay marriage in same sentence: I’m still laughing. (By the way, would any bad marriage be a “life sentence”? Is it “cruel and unusual”? Dunno — I’m too much of a chicken ever to risk wedlock.)
— Texas Latinos: TX may be the only locality where immigrants arrive and promptly become conservatives. I may never understand the Lone Star State.
— Gavin Newsom, eh? I’m involved in a friendly bet that Elizabeth Warren won’t be elected president — which just goes to show that, now and then, I can and do take huge risks. 🙂