1. JGL
    June 28, 2009 @ 9:02 am

    Slight overreaction do a differing opinion. Don’t ya’ think?


    • Mark Bennett
      June 28, 2009 @ 2:07 pm

      No. But thanks for asking.

      It is a crucial question, and was dealt with cavalierly, naively, and wrongly by an anonymous blogger with dubious expertise. Ryan’s post deserved to be put to the test.

      I exercised considerably restraint.


      • JGL
        June 28, 2009 @ 5:07 pm

        “I exercised considerably restraint.”

        As shall I.

      • Mark Bennett
        June 28, 2009 @ 5:31 pm


  2. John Kindley
    June 28, 2009 @ 2:50 pm

    “Who deserves the noose, and who the medal? Clarence Darrow believed that there was no way we mortals could possibly have enough information to answer these questions, and that the best we can do is cling to charity and understanding and mercy.”

    On further reflection, I may be coming around to your point of view — or rather, further reflection on my own principles and the considerations you’ve advanced may be leading me to give a greater and prevailing weight to a point of view I’ve always appreciated as having merit. I certainly subscribe to the notion that both individuals and governments should be constrained by a heavy presumption against coercion and in favor of liberty, and this applies as well to the length and severity of “punishments” for criminal offenses. Every act of coercion or violence should be justified by strict necessity.

    Take the case of Timothy McVeigh. In the previous thread on your blog, I cited and approved Lysander Spooner’s essay “Vices Are Not Crimes.” On this view, by punishing vices (such as drug use, prostitution and gambling) as crimes, and violating other natural rights on a regular and consistent basis (Waco being one particularly egregious instance of this), the U.S. federal government is itself the largest criminal organization on the planet. The taxation by which it funds its operations really and truly is criminal extortion. It is immoral to work for that criminal organization. That certainly doesn’t mean I approve of McVeigh’s bombing of the federal building in Oklahoma City. I myself, before I knew better, was an employee of the U.S. Navy for six years following high school graduation. It’s easy to remember my reasons for thinking I was doing something noble in that capacity, and one would have hoped that McVeigh, who was also former military, would have had more empathy for the victims of his crime (who misguidedly though sincerely probably thought of themselves as “public servants”) before he carried it out.

    Indeed, who deserves the noose, and who the medal? If the American Revolutionary War had been lost, its leaders would surely have been hanged, as they well understood when they signed the Declaration of Independence. Harry Truman’s bombing of Hiroshima and Nagasaki was a greater act of terrorism than McVeigh’s (or for that matter the attack on the World Trade Center), and its far more numerous victims had far less of a connection to the intended enemy than the federal employees murdered by McVeigh. If McVeigh deserved the noose or the gas chamber, then so did Truman.

    I don’t feel sorry for McVeigh, although I don’t believe he should have been executed. An individual or a group of individuals going to war against “its” government should be prepared to die for his or their convictions. But in my opinion, BTK deserved the death penalty far more than McVeigh, even though McVeigh killed far more victims. Although by no means do I approve of the actions of Scott Roeder, the man who killed George Tiller, and although for pragmatic reasons and because of the presumption against coercion I don’t think abortion should be criminalized, I view Roeder as similarly situated to McVeigh. A person who intervened lethally to defend and save the life of a newborn baby would not only not be prosecuted but would likely be commended by the public and the baby’s parents. Again, who deserves the noose, and who the medal?

    The cycle of violence has to stop somewhere, and it may as well stop with the State, which as a criminal organization is incompetent to render justice. Oddly though, if a father killed the man who raped his daughter on his way to the courthouse, I’m not sure that the father should be charged with a crime at all, because I’m not sure that the crime of rape doesn’t deserve death (assuming there’s no doubt as to guilt). I’d apply the same presumption against coercion and violence, the same benefit of the doubt, to the father. There would be no reason to think that the father would present a danger in the future to anyone else in society.

    There’s something to be said for Leo Tolstoy’s Christian anarchism and pacifism as he expressed it in his essay The Kingdom of God is Within You. Ultimately, however, such extreme pacifism is not practical and is not moral. We should not stand idly by and do nothing to stop or prevent a criminal from harming others or ourselves. But perhaps, recognizing that only God knows what each of us truly deserves, we should take such a presumption against coercion and violence as far as we can, as far as is practical and moral. Perhaps incapacitation (along with financial restitution for harm caused) should be the primary if not the only purpose of state-sanctioned criminal “punishment.”

    Suppose we are 99% sure, but only 99% sure, that a defendant committed a heinous crime (or a series of heinous crimes), and that he is truly and fully culpable for that crime (in light of his upbringing and genetic psychological makeup, for example). It would probably be imprudent to set him free based upon that 1% doubt. But that doubt remains. That doubt should inform the “correctional” environment, where prisoners should be protected from each other and their opportunities to improve and reform themselves should not be impeded.

    I still believe that certain crimes probably deserve death, and that we can be sure enough in particular instances of a criminal’s guilt and culpability to render the imposition of the death penalty not immoral. Again, death is not the worst that can befall a man. Again, the death penalty has the potential to waken the monstrous and self-centered criminal before his death to the enormity of his crimes, and to provide a measure of satisfaction to the victim’s family, whose belief that the criminal deserves to die does not necessarily mean that they are irrationally bloodthirsty. I didn’t get worked up by any perceived injustice in the execution portrayed in the movie Dead Man Walking. I wouldn’t shed a tear if the BTK killer was executed. I wouldn’t shed a tear if that man who viciously and brutally raped a very young girl and permanently damaged her was executed, even though he didn’t kill her. (Or has he already been executed?) I have a hard time getting worked up about the death penalty in general in cases of particularly aggravated murder, except where it appears that there is some doubt about the guilt of the convicted or there are significant mitigating circumstances or it is applied differently to different races. In my opinion, there are other things in our criminal justice system (the incarceration of people for victimless crimes, and the judicial evisceration of jury nullification, to name just two prominent examples) that are more worthy of getting worked up about.

    Nevertheless, for the reasons you’ve elaborated and the reasons I’ve mentioned above, I think I agree with you that the death penalty just isn’t worth it. We’re probably better off without it. We shouldn’t trust the State, a criminal organization, with questions of life and death. I agree with your paraphrase of Clarence Darrow, who “believed that there was no way we mortals could possibly have enough information to answer these questions, and that the best we can do is cling to charity and understanding and mercy.” I’m all for a less barbaric and less violent and more merciful society.


    • Mark Bennett
      June 28, 2009 @ 7:29 pm

      Suppose we are 99% sure, but only 99% sure, that a defendant committed a heinous crime (or a series of heinous crimes), and that he is truly and fully culpable for that crime (in light of his upbringing and genetic psychological makeup, for example).

      Suppose that we are 100% sure that a defendant committed a serious of the most heinous crimes.

      But we are not 100% sure that he is truly and fully culpable in light of his upbringing and genetic makeup (is there anything else?).

      It might be appropriate for the State to kill him—death could conceivably be the only way to keep him from reoffending. But killing him would be a practical solution: because he needed it, not because he deserved it.

      My position (in case it wasn’t already clear) is that, at least with the state of science as it is, we can never be 100% sure that a person deserves to die.


      • Jeff Gamso
        June 28, 2009 @ 8:43 pm

        I don’t doubt that some people may deserve to die (though I don’t know how we can, with any certainty, identify them).

        I do doubt that we deserve to kill them.

        Add all that together, and I reject the death penalty absolutely.

  3. David in Friendswood
    June 28, 2009 @ 8:12 pm

    >> Politicians act in ways they believe will get them elected.

    > That, at least, is inarguable.

    Ostensibly. All else being equal.

    Gov Sandford? Sen Ensign? Gov Elliot?

    I am not sure what those guys were thinking, but it wasn’t that their acts would get them re-elected.


    • Mark Bennett
      June 29, 2009 @ 7:54 am

      . . . proving that nothing is inarguable.

      Nobody said that politicians always act in ways they believe will get them elected.


  4. Tarian
    June 30, 2009 @ 5:43 am

    It’s a little hard to believe you’re devoting this much energy to defending what was, essentially, an attempt at cynical humor. The original definition you gave was deliberately over-simplified to make an ironic point. Do you seriously believe that EVERY politician enacts EVERY law SOLELY for the purpose of getting re-elected? If so, maybe we need to start awarding honorary PhDs in Over-Generalization. So you take this horse which was, if not dead upon arrival, at the very least lying on its side whinnying its last breath, and try to ride it for some more chuckles. Fine. We get it. There is often no relation between law and justice.

    But then poor Ryan comes in and actually attempts to fashion a more accurate statement out of your not-so bon mot, and you, for lack of a more refined description, jump his shit. Great job, Mark! Congrats on pointing out the flaws in his efforts while not acknowledging the inherent ridiculousness of the original assertion. I’m sure it makes him feel better for posting that you “excercised considerably (sic?) restraint.” Get off your high horse — oh, wait, as we’ve already established, that horse is dead! How about finding another and riding it with a bit more humility?


    • Mark Bennett
      June 30, 2009 @ 10:28 am

      Astronomers practice their science with an understanding of the limits both of their instruments and of their technique. They make no unfounded claims.

      Astrologers, by contrast, practice their art in the hopes of doing something that is, if not impossible, then at least far beyond the science of the day. (As do lawyers who think the criminal justice system actually produces justice, except by accident. I hate to have to explain the metaphor, but I’ve discovered that blogging with open comments, and trying to anticipate all of the ways that commenters can misunderstand so that I am not pecked to death by ducks, is writing for the least common denominator.)

      Either that or they are perpetrating a fraud on suckers.

      There are people (practitioners and suckers both) who earnestly believe that astrology leads to its intended end. It generally doesn’t or can’t be proven to.

      Sometimes, however, astrologers, by sheer coincidence, get it right.

      Maybe the criminal justice system should come with a label: “for entertainment purposes only.”

      The premise that politicians act to get reelected was Ryan’s, not mine. It was offered by him in support of a connection between law and justice. Take it up with him if you don’t like it.

      Again with “considerably”? It was an error, which I’d acknowledged. There are going to be more such errors in the next few days, since I’m using an old (eight years!) computer that is mysteriously slow in accepting text input in a web browser. Would you rather I’d edited it after JGL pointed it out?

      It’s interesting that those who are vocally critical of my reaction to Ryan’s piece are those who are reluctant either to contribute to the substantive discussion or publicly to take ownership of their own opinions by signing their actual names.


  5. Tarian
    June 30, 2009 @ 5:46 am

    Oh, and one more thing: Khan is the one who put Kirk in the decompression chamber. Kant is the one who woke up after an extended period of suspended animation, surfed the internet, read a bunch of blogs by people who didn’t understand him, and promptly drowned himself in the Danube out of despair.


  6. Clay S. Conrad
    June 30, 2009 @ 9:55 am

    When in doubt, turn to Ambrose Bierce’s superlative Devil’s Dictionary. I don’t know if he defined justice, but he did define injustice as “that burden which, though lightest in the hands, is heaviest on the back.”

    Thus, while we do not think much about “justice,” as a people, we often think about injustice, but only when it falls upon our own backs. When we inflict it, we tend to do so cavalierly.

    Justice, indeed, is a hard topic to explain, again paraphrasing Bierce, as naturalists have yet to find an intact specimen to examine. INjustice, however, is much easier to define, as we find intact speciments of that daily. The best definition of justice I can find, then, is the opposite of injustice — and injustice tends to strike us viscerally.


  7. shg
    July 1, 2009 @ 7:27 am

    On the defense side of the equation, two groups co-existent. They tend to share similar sensibilities, and often agree. But there is a fundamental difference, which I believe to be Mark’s point in parsing Ryan’s critique of Mark’s assertion that justice and law are wholly different concepts. I note in passing that I agree with Mark.

    Philosophers can ponder “justice”. Lawyers are the mechanics who try to make the system of “justice” work. Justice in the first sentence is a concept. In the second sentence, it’s just a nice word that appeals to people and makes them feel better about a less-than-perfect system. From the systemic perspective, there is no, and can be no, “justice” since each of us applies an entirely different measure. Justice to the victim and justice to the defendant rarely, if ever, align. That we pretend that there is some objective notion of justice is foolish.

    For someone like Ryan, a member of that group on the defense side of the equation with sensibilities similar to those of criminal defense lawyers, the elevation of conceptual justice to a place where it should be coextensive with law is where the two groups part ways. Ryan is involved with the Innocence Project of Florida. Criminal defense lawyers are part of the Innocence and Guilty Project of Wherever they Happen to Be. We are not concerned solely with seeking Justice for innocent people. We defend the innocent and guilty alike.

    So, if there is such a thing as justice, that would make us the champions of injustice. We don’t promote this, because it would make us even more hated than we are now, but it’s where criminal defense lawyers and those who think like Ryan part company.

    If there is a fault to Mark’s post, it’s that he speaks an unpleasant truth, a truth that even our friends don’t like to hear.


    • John Kindley
      July 1, 2009 @ 8:36 pm

      Defend ‘Em All, Let God Sort ‘Em Out!


  8. Thomas R. Griffith (The Griffith Files - 1984 & Beyond)
    July 2, 2009 @ 2:30 pm

    Mr. K., Love your Motto. Would you mind if I included your motto in the book The Griffith Files (1984 & Beyond) ?

    It really should be the very first words to be put on the blackboard on the first day of Law School. Then of course I would love to see my personal moto tatooed on the back of the graduating classes hands, “NoMoreNoloContendere” Defend Em All & That’s That.


    • John Kindley
      July 2, 2009 @ 3:27 pm

      Uh, no, I wouldn’t mind if you included “my” motto in your book.


Leave a Reply