So we’ll see.

I am actually shocked you read this into my remarks. I did not mean to suggest this at all. But I think you’re also right, the thread has wandered a bit, and should be left here.

I think we agree about deterrence, the fact that criminals do not think ahead, and that the death penalty is unlikely to deter murder where long sentences do not.

Yes, there are a lot of street criminals. (None of my clients, even the gang members, have ever been just as happy in prison.) Of the relevant penological theories, I prefer incapacitation/rehabilitation. So, yes, “my client has had a very sad life” is not a defense to guilt. It is, however, relevant to disposition in capital, non-capital and juvenile cases. It should also be relevant for purposes of social policy and criminal justice policy. We should approach criminal justice issues with humility and sadness and avoid the temptation of the moral high ground.

Really curious about this. Death penalty cases are too few and far too magnified to draw any general conclusions regarding increased penalties acting as a deterrent; general crime statistics for lesser offenses such as weapons and controlled substances might paint a better picture. Unfortunately (from the standpoint of making this argument) they do not offer stakes that are high enough with which to judge.

If a drug dealer knows he is facing 20+ years if he is convicted, imposition of LWOP for an additional weapons charge is simply the price of doing business. He gets caught, he goes down anyway. If he is awaiting trial and has a chance at killing a CI and perhaps derailing his trial, he will likely risk it, even in states (and in federal cases) that will impose a death penalty.

I’m not so sure that it is common sense. You and I might agree with that since we are educated and (presumably) have a certain level of societal commitment. There is a considerable element that is less enfranchised, and simply does not care. Should we care that we are executing people who do not care? Where is the deterrent in that?

Remarks here by you and others seem to suggest that as long as we can deter one murder with capital punishment, it should remain law. I can see that, but the terrible cost of imposing death sentences, the risk of getting it wrong, and the ludicrous delays in carrying them out argue that the death penalty is not effective. This leads to the “fix-it” argument, which I can’t pursue today.

Federalist brought up the victim’s point of view: “…we do, I think, to a certain extent ask what a hypothetical victim would want when we establish our criminal law.” Keep in mind there are several victims here, not just the person assaulted, but their friends, neighbors, and family, and society in general. Which standard should apply? Those who are affected the most? How can a victim be relied upon to decide the penalty? The results would be horribly unequal.

I also point to the Moussaoui case in which the government is making it convenient for families of victims of 9/11 to attend the penalty phase of the trial. The reason given is closure. However, Moussaoui had limited role in or knowledge of the plan to pilot an airliner into the Pentagon. Prosection contends that he failed to act on this knowledge and thus should suffer the ultimate penalty. How is execution of Moussaoui any closure for someone who lost a family member at the Pentagon? It’s like the defendant who would have been guilty of something else anyway.

Finally, I’d like to hear something about capital punishment in Europe, where it is largely outlawed. What makes the United States so fundamentally different? The Second Amendment? NRA would argue that weapons in the hands of responsible gun owners is a deterrent, so that should make us safer, and obviate capital punishment. Is it our violent history? If so, accepting that argument keeps us chained to our past and doomed to continue repeating the same mistakes.

Sorry for the long post; thank you for your indulgence.

..Jeff

I find it hard to believe that there’s a class of rational criminal who would not be deterred from killing by LWOP or 25 to life. I suppose the comeback is that there’s a class of criminal that views prison culture as an extension of the street criminal culture. My response to that is that such a person has had a very sad life.

I’m not sure how much that is a rejoinder rather than merely a response. It’s not so much a denial that there are such people as a disparagement of them; it seems to me that there are indeed such a class of people, and that they do indeed have very sad lives. They’re called “petty thugs” and “street criminals”, and it seems to me that we have a LOT of them in America. “Your honor, my client leads a very sad life” is hardly a defense.

I would think a more attractive point for you to make would be that, even if “LWOP or 25 to life” lacks deterrent effect, arguably, so does the death penalty. We’re talking about street criminals who don’t exactly plan ahead; if it takes twenty years to execute a person, that’s no real deterrent effect. But of course, there is no particular reason to conclude that the death penalty is imposed purely for its deterrent effect, and I suppose the logic of the “it takes too long” suffers from the same flaw as the “the prisoner might suffer because of too little anathetic” argument: there is an equally valid but (from a certain point of view) less attractive solution to that “problem.”