The SMH has an op-ed today by George Williams arguing against the death penalty. Apparently the federal parliament is considering a ban. This would prevent any State or Territory government from reintroducing the death penalty. Putting this in context, the last person executed in Australia was hanged in 1967. The last jurisdiction to maintain the death penalty on the books was NSW (abolished in 1985) but the last time someone was executed there was in 1940. The last ANU election survey indicates that support for the death penalty has fallen below 50 percent. So what’s the problem?
This leaves Australian law in an unsatisfactory state and our citizens facing the death penalty overseas in an even worse situation. Equivocation on the death penalty by our leaders, such as by recognising it as appropriate for someone like Saddam Hussein, makes it harder to oppose the execution of Australians overseas.
So being soft on war criminals and their ilk makes it less likely that Australians will be executed? This argument seems a bit strained to me. Irrespective of our domestic law – where the death penalty is not on the books in any State or Territory and history suggests that the authorities are loathe to execute anyway – I would expect the Australian government to assist Australian citizens on death row in other countries and oppose their execution.
Ambiguous statements by our politicians, combined with the silence in our law on the reintroduction of the death penalty, leave the door ajar for its return in a state. A political leader seeking high office could take the law and order debate to a new low by arguing for the reintroduction of the death penalty in response to a particularly heinous crime.
That could happen. The tyranny of the majority is a well-known potential cost of living in a democracy. But how serious is this threat? If you look at elected politicians they are more likely to oppose the death penalty than approve of it. I suspect that is due to selection mechanisms within political parties. Elite opinion is opposed to the death penalty and elitist organisations, like political parties, enforce that opinion. To be sure, some individuals get through the system, but I doubt there would be enough pro-death penalty people in any Parliment to pass that legislation.
So all up, I think the legislation is a waste of time and effort. While the budget is in deficit and the Commonwealth is indebted our friends in Canberra should be focused on economic management and not wasting our money and our time on this non-issue. As Williams concedes
Unfortunately, no federal law can prevent the reintroduction of the death penalty by a future federal parliament. Prohibiting its reintroduction at the state level is as far as we can go without changing the constitution.
____________
The Australian Institute of Criminology has a history of the death penalty in Australia.
Tim Fry and I wrote on the death penalty in 2007.
The NY Times has some coverage on the economics of the death penalty here.
The best economic anti-death penalty argument I’ve seen is by Justin Wolfers and John Donohue. A more recent paper is here.
I agree.
Andrew Norton
2 Mar 10 at 9:53 am
The problem with this is degree.
The death penalty should be in use against the worst crimes following a very strict and additional hearing.
You could be subject to it if:
- you commit aggravated murder (mass murder, genocide, serial murder, murder for financial gain, conspiracy to murder, murder of an infant, murder to conceal an indictable offence, murder in the commission of another indictable offence, wilful murder of on duty police, terrorism, political assassination)
- you show no remorse or contrition
- you are over 21 years of age at the time of the offence
- you are found guilty unanimously
- a panel of three judges unanimously agrees to the death penalty, in addition to the trial judge
- in this special court, the rules of evidence must satisfy the court beyond any doubt
- and facts must be proven by at least two exhibits of evidence
You wouldn’t get executed for killing your best mate in an argument.
Semi Regular Libertarian
2 Mar 10 at 10:03 am
Andrew – Sorry about that. I didn’t remember your post.
Sinclair Davidson
2 Mar 10 at 10:09 am
The punishment has to fit the crime.
A crime of murder where there is no doubt in evidence ( Eg Martin Bryant ) means the punishment can only be the death penalty as no other punishment fits the crime.
Butterfield, Bloomfield & Bishop
2 Mar 10 at 10:15 am
I’m no fan of the death penalty but this seems like more symbolism. It’s what they do well.
“We’ve done the apology, we’ve ratified Kyoto, now… what other symbolic gestures can we do?”
daddy dave
2 Mar 10 at 10:16 am
The punishment has to fit the crime.
Why?
jtfsoon
2 Mar 10 at 10:17 am
Generally I think the death penalty should apply to people convicted of treason and to crimes of terror. These are extraordinary and rare crimes which happen to rarely that deliberating sufficiently on them to address issues of reasonable doubt would be feasible.
However the justice system is so imperfect that I wouldn’t want it to apply to ‘average’ homicides because of the possibility of erroneous conviction. I think there’ve been enough people cleared of capital crimes in the US to justify distrust. I have no moral objection to capital punishment as such.
jtfsoon
2 Mar 10 at 10:21 am
I forgot treason. Basically I agree with Jason.
Semi Regular Libertarian
2 Mar 10 at 10:22 am
I have to say I am immediately cynical whenever I see some advocacy op-ed with the byline “George Williams.”
Williams is a member of the ALP (NTTAWWT), who has been angling for a safe seat for a while now, but has recently made pre-selection his highest priority. I don’t like him using his privileged media access to megaphone to ALP pre-selection committees his pre-selection campaign spiel.
So, while opposing the death penalty generally even at the global level, and will march in the street at any suggestion of its reintroduction in my own society – Australia – for now, Mr. Williams back in your box, please.
Peter Patton
2 Mar 10 at 10:29 am
Personally, I always felt that the Martin Bryant case was an appropriate exceptional one where I find it virtually impossible to argue against capital punishment as an appropriate response. Here’s a guy with enough self awareness to know what was doing, absolutely no doubt that he did it, and seemingly with no potential to ever be safely released back into society. He’s tried to kill himself several times.
steve from brisbane
2 Mar 10 at 10:34 am
The definition of Treason is pretty broad. I’m inclinded to agree with section d, but I reckon half the ABC have violated e(1) and f (i) and (ii) in the past decade.
Sinclair Davidson
2 Mar 10 at 10:34 am
jtfsoon
I re-watched the Cate Blanchett film version of Elizabeth the other night. There is a scene after Sir Francis Walsingham has rounded up all the treasonous papists, and sent them to the Tower to be beheaded. Elizabeth visits her former lover Lord Robert in his cell, and tells Walsingham she wants Lord Robert kept alive to remind her daily of just how close she came to ruining herself.
I think there is something in that to justify the banning of the death penalty especially in cases of treason and terrorism. OTOH, there is also the real risk of some of those people becoming martyrs, and that while they are alive they can draw attention themselves and their ideologies.
It’s a tough call.
Peter Patton
2 Mar 10 at 11:04 am
No it’s not.
They “want” to die, they deserve it and their cause uses such tactics precisely because it is desperate and undermanned.
Amrosi is a martyr? Funny how he tried to get out of it.
Semi Regular Libertarian
2 Mar 10 at 11:10 am
why because it is the only just punishment.
It is proportionate to the crime.
This is why you only use it where the evidence is overwhelming.
You would use where terrorists murder people but not when they do not.
Butterfield, Bloomfield & Bishop
2 Mar 10 at 11:11 am
If a referendum were held on the the reintroduction of the death penalty I’d imagine it would pass with 75%+ of the vote. If they’re using this issue as spin and deflection it will backfire horribly.
Infidel Tiger
2 Mar 10 at 11:24 am
Question. Why is Homer talking sense?
daddy dave
2 Mar 10 at 11:30 am
I have no problems with the death penalty for treason, terrorism (itself a form of treason), serial murder, particular callous instances of murder, and I’d even go so far as to say that Fritzl deserves to be hang as well.
dover_beach
2 Mar 10 at 11:31 am
I’d execute anyone who gives you your change on a plate in a bar and anyone who chants “Aussie Aussie Aussie, Oi Oi Oi”.
Infidel Tiger
2 Mar 10 at 11:34 am
You treasonous bum
Sinclair Davidson
2 Mar 10 at 11:37 am
Isn’t anybody going to say that the death penalty is just an example of big government at work?
Sinclair Davidson
2 Mar 10 at 11:58 am
Peter Patton: if we are worried about live terrorists still helping promote their cause from inside prison, perhaps it’s time to revisit exile to distant islands. Surely some still exist with no good telecommunications, and letters can always be censored.
steve from brisbane
2 Mar 10 at 11:59 am
we’re finding islands for these bums now? just shoot the bastards.
jtfsoon
2 Mar 10 at 12:01 pm
Hang ‘em, bullets cost money
tal
2 Mar 10 at 12:05 pm
“Isn’t anybody going to say that the death penalty is just an example of big government at work?”
Exactly. Government can’t be trusted on anything else, but it should be encouraged to choose people to kill?
It’s one thing for the punters to feel bloodlust, but the state has to organise for the deed to be carried out. Many lawyers – almost all strongly against capital punishment partly for just this reason – will refuse to become judges if they will be required to order executions. Personally, I would resign any office rather than order killing except in cases of extreme necessity. That necessity will never exist for someone already in custody.
Andrew Norton
2 Mar 10 at 12:06 pm
We also trust the government to defend our borders, build our roads and police our streets. We authorise it to kill in times of war. I don’t see what the big deal is.
Personally, I would resign any office rather than order killing except in cases of extreme necessity
Which would suggest that your beef is with the morality of the act rather than the consequences including possible human error involved in the policy, so your big government opposition to it is only secondary.
I do have a concern with the ability of the overloaded resources of the state to adjudicate cases involving such a penalty to sufficiently low rates of error which is why i only support it for the most extreme offences, namely those motivated by destruction of society itself.
jtfsoon
2 Mar 10 at 12:17 pm
I’m with Andrew.
The main reason I am against the death penalty is that mistakes do get made – especially in highly emotional cases.
The reason I am in favour of this legislation is that there have been times over the past 50 years when polls say a majority is in favour of the death penalty “for the most serious crimes”.
And a populist politician could whip up blood lust…
So this is one situation where I become undemocratic.
ken n
2 Mar 10 at 12:17 pm
Ken
why wouldn’t you execute Hitler if he was caught alive? Osama Bin Laden? Amrozi?
jtfsoon
2 Mar 10 at 12:19 pm
Jason – I think part of the issue is that Hitler, Bin Laden, Bryant and the like are easy (easier?) cases.
To some extent this comes back to the question of when violence is acceptable?
Sinclair Davidson
2 Mar 10 at 12:27 pm
No Andrew it isn’t the government killing them.
It is part of societies rules and norms.
A person is charged with Murder. A jury finds overwhelming evidence that he/she has committed the crime and then the Judge pronounces the sentence.
You get rid of mistakes by only haves the penalty when thee is overwhelming evidence.
the texas solution is no solution.
Butterfield, Bloomfield & Bishop
2 Mar 10 at 12:30 pm
Nup, Jason, just lock em up and throw away the key.
Sure there are extreme cases like those where it is difficult to argue they should live but I still reckon the principle of no state sanctioned killing is worth hanging on to.
(And don’t try to tie me up with arguments about killing the enemy in war. That’s just different)
ken n
2 Mar 10 at 12:38 pm
The Mikado on making the punishment fit the crime.
My object all sublime
I shall achieve in time—
To let the punishment fit the crime,
The punishment fit the crime;
And make each prisoner pent
Unwillingly represent
A source of innocent merriment,
Of innocent merriment!
All prosy dull society sinners,
Who chatter and bleat and bore,
Are sent to hear sermons
From mystical Germans
Who preach from ten to four.
The amateur tenor, whose vocal villainies
All desire to shirk,
Shall, during off-hours,
Exhibit his powers
To Madame Tussaud’s waxwork.
The lady who dyes a chemical yellow,
Or stains her grey hair puce,
Or pinches her figger,
Is blacked like a nigger
With permanent walnut juice.
The idiot who, in railway carriages,
Scribbles on window panes,
We only suffer
To ride on a buffer
In Parliamentary trains.
The advertising quack who wearies
With tales of countless cures,
His teeth, I’ve enacted,
Shall all be extracted
By terrified amateurs.
The music-hall singer attends a series
Of masses and fugues and ‘ops’
By Bach, interwoven
With Spohr and Beethoven,
At classical Monday Pops.
The billiard-sharp whom anyone catches
His doom’s extremely hard—
He’s made to dwell
In a dungeon cell
On a spot that’s always barred.
And there he plays extravagant matches
In fitless finger-stalls,
On a cloth untrue
With a twisted cue
And elliptical billiard balls.
Rafe
2 Mar 10 at 12:42 pm
My god, homer is making a habit of making sense.
He is right, it is not the government, it is the judiciary, that will judge these cases. All the government has done is authorize the use of capital punsihment in the most extreme cases.
dover_beach
2 Mar 10 at 1:28 pm
but I still reckon the principle of no state sanctioned killing is worth hanging on to.
Does this principle extend to euthanasia as well?
dover_beach
2 Mar 10 at 1:30 pm
Now you’ve opened a can of worms Dover
tal
2 Mar 10 at 1:32 pm
I think individual states should decide. I’d vote against reintroduction in my state at this point in time.
TerjeP (say Tay-a)
2 Mar 10 at 1:40 pm
d_b sometimes
ken n
2 Mar 10 at 1:41 pm
Well Terje, what if NSW had the death penalty like I outlined?
Semi Regular Libertarian
2 Mar 10 at 1:42 pm
DB
Euthanasia is supposed to be consensual. I see no harm in a procedure where there is
(1) a cooling off period and appointment of court psychiatrist
(2) signing of consent form by terminally ill patient to authorise whoever to end his life under certain conditions.
Alternatively there wouldn’t be an issue if certain paraphenalia were just legalised for such purposes.
Personally I’d resent someone who was forcing me to be kept alive when I was a vegetable because of some squeamish religious considerations.
I am consistently pro-death on all these fronts so you haven’t opened up any can of worma at all. i am pro-abortion, pro-euthanasia, pro-capital punishment and pro pre-emptive war (under the right conditions)
jtfsoon
2 Mar 10 at 1:42 pm
Referring to the judiciary as “the government” is going a little too far when most people are really referring to the executive.
Capital punishment also provides retribution for some horrifying crimes that have been committed.
When an evil couple stalk a pregnant woman kidnap her just at the time she was about to give birth, then rip out the kid out of her womb all bets are off. I’d be happy to pull the plug on such evil and sleep well the same night.
JC
2 Mar 10 at 1:54 pm
let me echo DD’s amazement at Homer talking sense today BTW
jtfsoon
2 Mar 10 at 1:59 pm
DD, Jason.
Please.
It ought to be evident to all that the only reason he’s lucid today is the the doc changed his anti-stupid medication. As you know, unfortunately the benefit quickly wears off.
He’ll be back to “normal” in no time.
You two shouldn’t be building up false hope like this as it’s wrong for the rest of us.
JC
2 Mar 10 at 2:08 pm
“To some extent this comes back to the question of when violence is acceptable?”
Defensive violence is acceptable, IMO.
I believe there was some research that estimated 18 murders prevented per execution. If true, that seems a reasonable argument in favour.
Paul Williams
2 Mar 10 at 2:36 pm
The definition of Treason is pretty broad. I’m inclinded to agree with section d, but I reckon half the ABC have violated e(1) and f (i) and (ii) in the past decade.
And what exactly would be the problem if 50% of the ABC were charged with treason. I have absolutely no problem with that whatsoever. In fact the court would be the best place to assess their treasonous actions and comportment.
JC
2 Mar 10 at 2:42 pm
IMHO the death penaly should be on the palte for crimes considered bryond the pale.
But Id like to see parliment involved as well. Maybe a concience vote to strip the person of their status as a citizen? I know that sounds a little Stalinistic, but it would then become another check on the process, and parliment would have to live with the moral consequences of authorising the killing.
We have the sad case where Catherine Bernie is due for release and quite shameful political corruption of the judicial process is needed to keep her inside.
From the wiki (I know its not 100% but its a quick link)http://en.wikipedia.org/wiki/David_and_Catherine_Birnie
“..Catherine Birnie is imprisoned in Bandyup Women’s Prison, where she is the head librarian. She was barred from attending David’s funeral; her first application for parole in 2007 was rejected, and the then Attorney-General of Western Australia, Jim McGinty, said that her release was unlikely while he remained in office.[2]
Her case was to be reviewed again in 2010; however, on March 14, 2009, new Western Australian Attorney-General Christian Porter revoked Catherine Birnie’s non-parole period, making her the third Australian woman (after Katherine Knight and Patricia Byers) to have her papers marked “never to be released”.[3] She is currently appealing this decision, to be heard in February 2010…”
Then theres the safety of other prisoners inside the gaols. Do convicted fraudsters really deserve sadistic scum buggering them up the arse for their entertainment?
“David Birnie was found dead in his cell at Casuarina Prison on 7 October 2005. He had committed suicide by hanging; he was due to appear in court for the rape of a fellow prisoner the next day…”
I havent seen the protection of prisoners brought up in this type of discussion before, perhaps its time it was?
Mole
2 Mar 10 at 2:45 pm
The death penalty in the case of particularly sick and dangerous murderers also serves to protect other prisoners from those people.
Yobbo
2 Mar 10 at 3:42 pm
Yea. I actually think it’s wrong NOT to impose the death sentence on really sick and dangerous murderers. I think it’s immoral not to. It’s a cop out.
JC
2 Mar 10 at 3:47 pm
I’m surprised that liberals would be so keen to hand the State the right to murder its citizens. Capital punishment, sedition laws, and all the rest have been abused by states virtually everywhere they’ve been introduced. Extending the death sentence for ‘treason’ is basically an invitation for Stalinist show-trials against political dissenters. It’s ridiculous to reduce this question to whether sadistic killers deserve death – they probably do – but the real question is whether the State’s administrative powers should include the right to kill its subjects.
THR
2 Mar 10 at 4:44 pm
JC,
I cannot agree. While we accept the death penalty at all in our society there is a chance, and a good one, of it being misused or used incorrectly. If the number of offences and alleged or convicted offenders to be executed is low, then protecting them or others from themselves should be possible, if more expensive than for a normal prisoner.
In addition, if we were to look at it purely economically, then the cost of imprisonment is likely to be less than the cost of all of the additional proceedings and infrastructure needed to carry out executions.
Morally, as well, I have serious problems with the idea that the State can be allowed to take a step from which you cannot apologise to the individual, cannot recompense at least in some way if there is error, however unlikely that eventuality is.
The cost just is not worth it, IMHO.
Andrew Reynolds
2 Mar 10 at 4:51 pm
THR:
If the judiciary is independent and pretty decent I don’t the real connection with the executive (the government). In fact a decent judiciary should be ever mindful the government doesn’t over step like SCOTUS recently did in its decision to ensure the constitutionality of free speech.
JC
2 Mar 10 at 4:52 pm
Andrew:
Heinous acts deserve heinous punishment. Someone kills a person and rips a kid out of her womb while the poor victim is still alive doesn’t deserve to live.
Texas is used as an example against cap punishment however Texas does have a pretty decent review system.
In fact I believe all cap punishments in the US are actually reviewed by SCOTUS.
JC
2 Mar 10 at 4:55 pm
oops I don’t SEE the real connection….
JC
2 Mar 10 at 4:55 pm
Jc, I don’t see why we ought to respect or trust the judiciary any more than the executive, especially since the former aren’t even elected. Secondly, the independence or otherwise of the judiciary is a huge assumption to make when granting powers to the State. It wouldn’t take much more than appointing a few stooges to the judiciary for independence to exist on paper only.
THR
2 Mar 10 at 5:00 pm
yes, but the world isn’t perfect. Humans are perfect. Cap punishment should be used sparingly and there’s almsot no doubt.
There are fucking devils on death row for the most part.
JC
2 Mar 10 at 5:06 pm
SRL – I’d still vote against it.
TerjeP (say Tay-a)
2 Mar 10 at 5:10 pm
…a person and rips a kid out of her womb while the poor victim is still alive doesn’t deserve to live.
Yes, few people deserve the death penalty more than abortionists – who themselves administer it for a quid.
Two observations:
1) I can’t accept that the state has the authority to kill, excepting for national defence;
2) Not do I approve of attempts by “progressives” to force their view on Australian parliaments and the Australian people by way of a ban. They should agitate for the question to be out to a plebiscite if they feel strongly about it. Otherwise, they’re admitting that they’re in fact seeking to railroad Australian everyman – who they, of course, despise – by diktat.
C.L.
2 Mar 10 at 5:11 pm
NOR do I approve…
C.L.
2 Mar 10 at 5:12 pm
I’d execute anyone who gives you your change on a plate in a bar and anyone who chants “Aussie Aussie Aussie, Oi Oi Oi”.
.
I’m against the death penalty but I can’t fuind any argument to counter this. Obviously they deserve to die.
Adrien
2 Mar 10 at 5:14 pm
“SRL – I’d still vote against it.”
Commie bastard.
“I’m surprised that liberals would be so keen to hand the State the right to murder its citizens.”
Clearly not, I demand a trial, pre sentencing report and a unanimous decision to apply it under a re-examination of evidence which must be beyond any doubt. Also in the circumstances, it isn’t murder.
Semi Regular Libertarian
2 Mar 10 at 5:22 pm
Hey, don’t knock the oi oi oi.
C.L.
2 Mar 10 at 5:31 pm
I am consistently pro-death on all these fronts so you haven’t opened up any can of worma at all.
Jason, I didn’t think I did either. I was just asking to see whether the application of this principle by Ken was uniform.
I’m surprised that liberals would be so keen to hand the State the right to murder its citizens.
THR, it isn’t a ‘right to murder’ its citizens. It is the capacity to punish those who have committed the most heinous crimes having been found guilty by a jury within a court of law. Further, the judiciary do not exercise ‘administrative’ powers in courts of law.
dover_beach
2 Mar 10 at 5:39 pm
The power to kill citizens is still being conferred on – or presumed to inhere in – the state. The state has no such power.
C.L.
2 Mar 10 at 5:41 pm
exactly, Cl.
JC
2 Mar 10 at 5:41 pm
Yep, that’s right, CL.
JC
2 Mar 10 at 5:42 pm
THR, it isn’t a ‘right to murder’ its citizens.
In effect, it clearly is, legal tartuffery notwithstanding. The purpose of the death penalty is principally retributive justice (i.e. State-sanctioned vendetta).
THR
2 Mar 10 at 5:42 pm
anyone who chants “Aussie Aussie Aussie, Oi Oi Oi”.
.
That would be you then, using Monty Python logic. Did you not just say “Aussie Aussie Aussie, Oi Oi Oi”, in the quoted bit above?
Reminds me of this: I’m warning you. If you say “Jehovah” once more…
daddy dave
2 Mar 10 at 5:48 pm
For thos agin the death penalty, would you allow the guilty to be forced to work as insulation installers?
Infidel Tiger
2 Mar 10 at 5:50 pm
In effect, it clearly is, legal tartuffery notwithstanding.
Nonsense. If it were a ‘right to murder’ enjoyed by the state then it would be able to simply kill any person it wanted to without there needing to be the commission of a crime, the requirement that the Crown prove that A committed X, that the jury accept the Crown’s case, and that the judge decide that CP was the appropriate penalty in this circumstance. If you find this is still ‘murder’ and all the intervening steps ‘legal tartuffery’ (as an aside its interesting that you find ‘due process’ a sham, while in other instances you champion them; a performance that honours Tartuffe), then you’re living in a fantasy.
dover_beach
2 Mar 10 at 5:54 pm
As I said, dover, legal tartuffery notwithstanding. And where have I been championing ‘due process’? It’s obvious that the latter is itself constructed by the State. Bukharin received ‘due process’, for instance. You’re attributing magical powers to ‘due process’, as if its basically the waters of Lethe, there to cleanse the State of its dirty conscience.
THR
2 Mar 10 at 5:58 pm
The point is, there are criminals on death row who have no business continuing to exist. They have murdered innocent people, almost certainly have no genuine remorse (which means ACCEPTING that they are guilty and RESOLVING to mend their ways), and if released they will only harm other people. These criminals should be removed permanently from society and the only way to guarantee this – keeping the Huckabee precedent in mind – is to execute them.
Michael Fisk
2 Mar 10 at 6:14 pm
By the way, if it is acceptable for the government to kill foreigners who seek to harm us by invading the country, why is it not acceptable to kill citizens who have committed mass murder and found guilty beyond doubt?
Michael Fisk
2 Mar 10 at 6:15 pm
THR
Well first of all, it is the judiciary who dispenses the death penalty. Secondly, any legislation reintroducing the death penalty is done through the [compulsorily voted] people’s house – HofR – and the state’s house [Senate].
So dismissing a policy change like this as the capricious act of some disembodied and unaccountable “state” is not quite right. It would be “people sanctioned,” and only applied by an independent and respected highly rule and process bound judiciary. Not that that makes it desirable.
Peter Patton
2 Mar 10 at 6:15 pm
As I said, dover, legal tartuffery notwithstanding. And where have I been championing ‘due process’?
Your not being serious, are you? Are you suggesting that you’ve never complained about people being denied habeas corpus, etc.?
It’s obvious that the latter is itself constructed by the State. Bukharin received ‘due process’, for instance. You’re attributing magical powers to ‘due process’,
Ah, yes, THR is getting all hairy-chested now. The rule of law involves ‘magical powers’. Habeas corpus is “legal tartuffery”, as is the right to legal representation, trial before one’s peers, etc. And in order to illustrate that the legal rights that we enjoy here are no more than a ‘sham’ he provides the example of Bukharin under Communism. Well, I agree, ‘due process’ under communism was and remains a sham; not so much in Anglo-European countries.
as if its basically the waters of Lethe, there to cleanse the State of its dirty conscience.
No, what due process does is ensure that A is accorded his or her rights under law, etc. If he or she is found guilty of X then it is at the discretion of the judge to decide whether the appropriate penalty is CP. Having gone through such a process, there is no ‘dirty’ conscience to cleanse, any more than there is when some is convicted and sent down for life.
dover_beach
2 Mar 10 at 6:16 pm
THR
Bukharin!!? Well NOW I’ve heard it all. We should defer to an early 20th century Marxist/Bolshevik, who helped Stalin succeed Lenin, when we consider the legitimacy of the Australian democratic process – electoral, legislative, and judicial – in 201011??
Ah, earth to Marxism. The reality of the Australian polity in 2010 pretty much trumps early 20th century Russian Marxist nutters.
Peter Patton
2 Mar 10 at 6:21 pm
List of countries by murder rate.
List of countries still using capital punishment.
I only crosschecked the first ten top murdering countries. Every one has the death penalty. Doesn’t seem to be achieving much.
C.L.
2 Mar 10 at 6:24 pm
By the way, if it is acceptable for the government to kill foreigners who seek to harm us by invading the country, why is it not acceptable to kill citizens who have committed mass murder and found guilty beyond doubt?
When has Australia ever killed foreigners seeking to invade us? In Gallipolli? In Vietnam? A better question is why is it acceptable for a government to kill anybody it deems beyond the pale?
Well first of all, it is the judiciary who dispenses the death penalty. Secondly, any legislation reintroducing the death penalty is done through the [compulsorily voted] people’s house – HofR – and the state’s house [Senate].
‘Representative democracy’ as conceived here is barely representative and still democratic. It’s not a prima facie argument in favour of accepting any old edict.
Are you suggesting that you’ve never complained about people being denied habeas corpus, etc.?
Yes, that’s precisely what I’m saying. In fact, I’ve repeatedly criticised the foolish attitude that judges the Iraq war, for instance, solely in terms of its legality, or lack thereof.
Put your procedural fetishism aside for a moment. A trial is very much a battle of who has the better legal rep. The example of Bukharin has been echoed repeatedly in the West, albeit, on a lesser scale.
THR
2 Mar 10 at 6:25 pm
“A trial is very much a battle of who has the better legal rep.”
A common lay view, but nonsense.
ken n
2 Mar 10 at 6:27 pm
THR
I agree. But I think what you are primarily referring to there is an over-powerful and capricious executive. As I said above, I unreservedly oppose the death penalty in my own society/culture – Australia – but nevertheless, if it ever were reintroduced in Australia, I would pretty much respect the processes by which it was re-introduced, and accept the political and legal legitimacy, even if it went against my very core. Basically, I would have to concede that ‘the tribe has spoken.’
Peter Patton
2 Mar 10 at 6:30 pm
The top 10 are hardly poster countries.
dover_beach
2 Mar 10 at 6:32 pm
What about the crime bosses and terrorist cell leaders who continue running their organisations from their prison cells, ordering murders and planning massacres? Some monsters are no less a danger to society when locked behind prison walls.
The civil-libertarians need to get their heads around the idea that its not just governments that commit human rights abuses.
Frankie V.
2 Mar 10 at 6:34 pm
Yes, that’s precisely what I’m saying. In fact, I’ve repeatedly criticised the foolish attitude that judges the Iraq war, for instance, solely in terms of its legality, or lack thereof.
That is a different argument. You argued early that ‘due process’, etc. was a sham, “legal tartuffery”, to be exact. If you were charged with a crime, are you telling me you wouldn’t complain if you were denied ‘due process’, etc.? Would you regard the claim of another to ‘due process’ procedural fetishism? Of course you wouldn’t so stop pretending these legal rights are no more than a sham.
Put your procedural fetishism aside for a moment.
Its not procedural fetishism; I’m not arguing that due process always delivers justice. By the way, who do you think you’re impressing by taking this cavalier attitude to ‘due process’, etc.?
The example of Bukharin has been echoed repeatedly in the West, albeit, on a lesser scale.
Echoed, yes, but it is hardly representative.
dover_beach
2 Mar 10 at 6:41 pm
THR
If capital punishment were re-introduced to Australia – presumably via the processes I outlined above – then there could be no “state-sanctioned murder” because the very definition of murder includes unlawful killing.
Peter Patton
2 Mar 10 at 6:48 pm
Three high profile “murderers” have had their convictions overturned in Perth in the last decade.
That to me is evidence enough not to re-introduce the death penalty.
sdfc
2 Mar 10 at 7:42 pm
I agree with that. But only under the current system.
There should be an additional tribunal with exceptionally high standards to authorise it, for particularly bad cases.
Semi Regular Libertarian
2 Mar 10 at 7:45 pm
When has Australia ever killed foreigners seeking to invade us?
The only example has been Japan. But we had every right to kill Japanese personnel who posed a threat to our national sovereignty. Any other position is necessarily a pacifist one that is in fact, as Orwell would say, “objectively pro-fascist”. In the same way, refusing to kill murderers in cases where we have 100% proof of their guilt is soft on crime. Murderers should always be treated reciprocally.
Michael Fisk
2 Mar 10 at 7:46 pm
SDFC:
Isn’t that a sign of success though. isn’t that a sign that the legal system can find fault with itself and redress the error.
I don’t see how that changes anything to do with the death penalty as those same innocent men would receive the same judicial review.
I don’t quite see how deomonstrating that innocent people get off is a reason to take away the death penalty.
There are some crimes that are so heinous and so water tight that questions don’t arise in terms of innocence.
Can anyone here name a person that was put to death in the US and was later found to be innocent?
JC
2 Mar 10 at 7:47 pm
There should be an additional tribunal with exceptionally high standards to authorise it, for particularly bad cases.
Only in cases where there is no doubt as to the murderer, such as Martin Bryant, should the death penalty be applied. But not to apply the penalty to a proven savage who has rejected civilised society in the most extreme manifestation possible would be an injustice.
Michael Fisk
2 Mar 10 at 7:48 pm
JC each of those men spent years in gaol, the presence of the death penalty means that one or more of those men could be have been executed.
sdfc
2 Mar 10 at 7:50 pm
A conviction means the court was of the opinion there was no doubt.
sdfc
2 Mar 10 at 7:52 pm
SRL
I don’t have the exact figures, but in the US, for example, isn’t there typically a very long gap between a person is given the death sentence, and when it is actually carried out, to allow for appeals and such?
Peter Patton
2 Mar 10 at 7:53 pm
Apparently not, sdfc. I agree with SRL that there needs to be another tribunal to administer these cases.
Michael Fisk
2 Mar 10 at 7:54 pm
Well how do you assume they would have been sentenced to death, SDFC. You can’t make that spurious assumption.
There are vast numbers of murderers in US jails not facing death. The idea that death automatically gets you a death sentence in the US is freaking bullshit.
Explain how you reached that spurious assumption.
JC
2 Mar 10 at 7:56 pm
Here’s wikipedia on Reasonable Doubt:
Beyond a reasonable doubt is the standard of proof required in most criminal cases within an adversarial system. Generally the prosecution bears the burden of proof and is required to prove their version of events to this standard. This means that the proposition being presented by the prosecution must be proven to the extent that there is no “reasonable doubt” in the mind of a reasonable person that the defendant is guilty. There can still be a doubt, but only to the extent that it would not affect a “reasonable person’s” belief regarding whether or not the defendant is guilty. “The shadow of a doubt” is sometimes used interchangeably with reasonable doubt, but this extends beyond the latter, to the extent many believe it an impossible standard[citation needed]. Reasonable doubt is therefore used.
http://en.wikipedia.org/wiki/Reasonable_doubt
Michael Fisk
2 Mar 10 at 7:57 pm
Any of you guys think Ivan Millat could ever be found innocent?
No theoretical moralizing nonsense here folks.
Yes or no.
JC
2 Mar 10 at 7:57 pm
oops …The idea that murder automatically gets …..
JC
2 Mar 10 at 7:58 pm
Beyond the shadow of a doubt
Beyond the shadow of a doubt, or beyond a shadow of a doubt, is a standard of proof. The phrase means the issue in question is so obvious, or has been so thoroughly proven, that there can exist no doubt[1]. Two possible interpretations of “Beyond a shadow” might refer, first,to the fact that doubt could be nowhere in the vicinity (completely expelled from the issue), or second, to the thoroughness of the argument (a shadow being even less substantial than a doubt itself)[2].
Michael Fisk
2 Mar 10 at 7:59 pm
http://en.wikipedia.org/wiki/Beyond_the_shadow_of_a_doubt
Michael Fisk
2 Mar 10 at 8:00 pm
“The idea that death automatically gets you a death sentence in the US is freaking bullshit.”
Yes it is BS.
Read the Texan Penal Code. Or the South Carolina Code.
Those Southerners have brains too. But I’m asking for an extra judicial layer of three judges to agree unanimously to such a serious punishment in addition to a guilty verdict and the sentencing report of the trial judge if the evidence is beyond ANY doubt and if there is no contrition, and they are over 21, and if they should be liable for guilt anyway (e.g, having full mental faculty).
This isn’t unreasonable or bloodthirsty. It goes some way to satisfy the reasonable claims against the death penalty against the worst murderers of all.
Semi Regular Libertarian
2 Mar 10 at 8:04 pm
If capital punishment were re-introduced to Australia – presumably via the processes I outlined above – then there could be no “state-sanctioned murder” because the very definition of murder includes unlawful killing.
Partly true, Peter. Murder, by definition, is killing that a society defines as unlawful. Yes, OK. But we have to be careful not to conflate legality with morality. States routinely define things for self-serving, unjust and specious reasons. Cartography, property rights, religious affiliation, racial identity – all have been re-defined by states to create ostensible lawfulness. That the gubbermint defines something as lawful and just does not, ipso facto, make it lawful and just.
C.L.
2 Mar 10 at 8:08 pm
Now your just being silly JC, though that is no surprise.
Have any innocents been executed in the US? It appears there has.
http://www.deathpenaltyinfo.org/executed-possibly-innocent#also
Michael the major difference as I understand it that in criminal courts the question of guilt must be beyond doubt so as to get a conviction.
sdfc
2 Mar 10 at 8:09 pm
“you’re just being silly” Damn my second rate English skills.
sdfc
2 Mar 10 at 8:10 pm
C.L.
Yes, you are quite right. I was clearly being parochial and confining my terms such as “legal” to the Australian context that, once again, I presume, would exist if Australia were to re-introduce capital punishment.
Peter Patton
2 Mar 10 at 8:10 pm
Here’s list of death row prisoners in Texas.
look at what these angels have done.
http://www.tdcj.state.tx.us/stat/offendersondrow.htm
You have to commit two concurrent felonies there of a heinous nature to be placed on death row , perhaps like this.
Summary of incident
*The subject on August 24, 2007, during the daytime in Jonestown, Texas, entering a residence and using a .380 pistol to shoot a 15 year old white female in the forehead, a 48 year old white male in the upper right shoulder, a 46 year old white female in the head and a 17 year old white female in the right cheek, left chin and inside of her head causing the deaths of all 4 victims.
Co-defendants:
*None
Race and Gender of Victim
*15 year old white female, 46 year old white female, 17 year old white female, and 48 year old white male.
I’m arguing the victims also have a right to speak from the grave. We have a moral right to give them retribution.
They have a right to see that the world they left behind (always in a violent manner) does them justice in their name.
The victims have a damn right to be respected.
I’m always hearing about the rights of the devils on death row in these Australian chit chats and never about respecting the past lives and the travesty the victims went through.
JC
2 Mar 10 at 8:12 pm
SDFC:
Don’t offer up advocacy groups opinions. I want to see real hard evidence.
JC
2 Mar 10 at 8:14 pm
Here’s some more
Summary of incident
On November 22, 2004 in Bexar County, Texas, Neal and codefendant entered the private residence of the victim, a 58 year old white female, and forced her to have sexual intercourse. Neal and his codefendant then escorted the victim to a vehicle where she was shot 5 times.
Co-defendants
Pearl Ann Cruz
Race and Gender of Victim
White Female
Prior Prison Record
TDCJ #442312 on a 4 year sentence from Dallas County for Injury to a Child. Beatty was released on Mandatory Supervision and returned with a new conviction, a 15 year sentence from Dallas County for Theft.
Summary of incident
On 07/25/2003 in Smith County, Texas, Beatty strangled his mother, a sixty-two year old white female, placed her in the bathtub for two days and then buried her in a shallow grave in their backyard.
Co-defendants
None
Race and Gender of Victim
White Female
Summary of incident
On 03/18/2004 in Collin County, Texas, Mendoza fatally strangled a 20 year old white female, took her body to a field behind his house and kept her there for several days until questioned by police. Mendoza then drove the body to a dirt pit in rural Collin County, set her body on fire and buried her under a brush pile.
Co-defendants
None
Race and Gender of Victim
White Female
Summary of incident
On August 4, 2002, in Dallas, Texas, Ochoa fatally shot his 29 year old wife, his 7 year old daughter, his 9 month old daughter, his father-in-law and his sister-in-law.
JC
2 Mar 10 at 8:20 pm
Executed offenders list:
http://www.tdcj.state.tx.us/stat/executedoffenders.htm
more examples of angels at work.
Summary of incident
On October 11, 1997, Salazar murdered a 28-year-old hispanic female. Salazar crawled through a front window of a private residence. He tried to sexually assault the victim when she woke up. Salazar then stabbed her multiple times in the chest when her 10-year-old son heard her screaming. The victim’s son rushed to his mother’s aid and was stabbed one time in the chest. Her son was able to get up and run to a neighbor’s house and call the police. When they returned to the home, they found the victim unresponsive on the bedroom floor with multiple stab wounds to her chest area. A kitchen knife was lying on the floor by her head. The victim’s 2-year-old daughter and 4-month-old baby were also in the bed with her.
Co-defendants
None
Race and Gender of Victim
Hispanic female
Prior Prison Record
None
Summary of incident
On 08/26/2001, in Mansfield, Hankins shot his wife (34 year old white female) one time in the head while she was sleeping, resulting in her death. The next day, Hankins shot his stepchildren (a 12 year old white male and a 10 year old white female) in the same manner, causing their deaths. After his arrest, Hankins told authorities where to find the bodies of his 55 year old father and his 20 year old sister, whom he murdered in 2000.
Co-defendants
None
Race and Gender of Victim
white male and white female
Prior Prison Record
None
Summary of incident
During the nighttime on 10/1/96, Martinez fatally shot a 27-year-old Hispanic female, her two children (a 3-year-old Hispanic female and a 6-year-old Hispanic male), and an 18-year-old Hispanic male.
Co-defendants
None
Race and Gender of Victim
Two Hispanic males and two Hispanic females
JC
2 Mar 10 at 8:25 pm
JC I know you’re easily confused but really at least try and keep you eye on the ball. I made no comment on prisoners rights. I was highlighting the possibility of innocent people being executed.
I gave you an example of where an innocent man may have been executed. If you choose to ignore it there is not much I can do about that.
If you want hard evidence of an innocent being executed then here’s one a bit coser to home.
http://www.abc.net.au/news/stories/2008/05/27/2256398.htm
sdfc
2 Mar 10 at 8:29 pm
SDFC;
You don’t obviously support the death penalty so stop hiding the silly mask as it doesn’t work.
All I keep hearing about is the rights of fucking pigs to have their lives spared and not once have I ever heard anyone mention anything about the victims of these heinous monsters.
I respect life. As a libertarian in pretty much everything I respect the sanctity of human life trumping everything. That means that even the dead have a right to find justice. I respect life so much that I support the death penalty for those that take it away in a heinous, evil manner.
JC
2 Mar 10 at 8:36 pm
Wow. Yorkshire Ripper seeking release, psychiatrist says he thinks he’s a “low risk” dude:
C.L.
2 Mar 10 at 8:44 pm
Peter Sutcliffe, who was jailed for life in 1981 for the murder of 13 women and seven counts of attempted murder, has applied to the High Court in London to grant him a finite minimum sentence.
Their lives and the memory of their lives don’t count. It’s his rights that counts. The right to be released because he’s ‘low risk” now?
Fme.
JC
2 Mar 10 at 8:50 pm
The killer of the wonderful and brilliant Victor Chang is set to be deported now that he’s been released after serving 18 years.
This is a textbook case of how excrutiating this subject is. How many more lives would Dr Chang have saved by now? Hundreds, probably. But he was killed by a thug who now walks after doing less time in the clink than Schapelle Corby.
C.L.
2 Mar 10 at 9:01 pm
Your a libertarian JC, yet you also want to tell people what they’re thinking?
Those two positions seem a little contradictory.
sdfc
2 Mar 10 at 9:56 pm
You’re framing it dishonestly as usual, SDFC.
You can think what you like, but your bullshit won’t pass the smell test and when it doesn’t, which is quite frequent, you’ll be told that what you’re saying is and sounds like transparent bullshit.
JC
2 Mar 10 at 9:59 pm
How is it dishonest JC? I told you my reservations were related to the possibility of innocent people being executed. You read this as me sticking up for the rights of murderers.
I even gave you examples where it appears innocents have in fact been been executed.
You may try to pass yourself off as a psychic but in reality it appears you have a problem with tolerating dissent. Some libertarian.
sdfc
2 Mar 10 at 10:08 pm
How is it dishonest, you ask?
Your “reservations” were cloaked in silly links by advocacy groups and I never said anything about you sticking up for the rights of murderers. I said you were hiding behind a mask in your opposition to capital punishment.
Since when has libertarianism been about sucking up other people’s bullshit and accepting it. IF you think that you’re really ignorant. It would be almost like saying I couldn’t have an opinion.
In my opinion you’re bullshitting and it would be best to come clean instead of playing word games.
I would be intolerant if I genuinely said you had no right to speak your opinions. However I don’t have to accept your bullshit. That’s different.
Your logic is all screwed up.
JC
2 Mar 10 at 10:16 pm
The fact that Victor Chang’s killer is walking free is despicable. If we’re not going to execute these mofos, at least lock them up for the term of their natural lives. What a disgrace.
Infidel Tiger
2 Mar 10 at 10:18 pm
“appears in fact”
Extremely rubbery. Don’t use that kind of phraseology with such a touchy subject. JC I think gets too freaking emotional.
So, does anyone have an opinion on the idea of having an extra layer in the court system to deal with this? It would seem to be a solution.
I put up my ideas here:
http://catallaxyfiles.com/2010/03/02/a-federal-ban-on-the-death-penalty/comment-page-3/#comment-19314
Another to the list would be murder of another inmate.
Semi Regular Libertarian
2 Mar 10 at 10:22 pm
Yes that true, it is an emotional subject.
SRl
I think you idea is good one , but as far as I understand there are several layers of judicial procedure that a death verdict has to go though in every state of the US and I also think the SCOTUS can be easily brought in on account of the “cruel and unusual punishment” clause in the US constitution.
In other words it is a given that a death penalty will go through several layers, including the governor thereby even touching the political process before it is carried out.
That’s the reason why they sit on death row for years and years.
JC
2 Mar 10 at 10:29 pm
There are certain powers, small in number, that ought never to be handed over to any part of the state. These include the ‘right’ to execute people, to torture people, and so on. For extremely violent and vicious crimes, there are practically no forms of punishment equal to the original deed, short of torturing and dismembering somebody. Even then, such punishment won’t bring the deceased back to life. The idea that an execution would square matters is false. The idea of execution as deterrent is false (see CL’s list of countries). The desire for bloody vengeance is perfectly understandable, but ought not to be enshrined in the state, irrespective of ‘due process’.
THR
2 Mar 10 at 11:08 pm
There are certain powers, small in number, that ought never to be handed over to any part of the state.
.
That’s a very appealing line of argument, THR. I also like this, as it’s something I’ve believed for some time:
.
The desire for bloody vengeance is perfectly understandable, but ought not to be enshrined in the state
.
This is why victims should never have anything to do with the sentencing process, through victim impact statements, for example.
daddy dave
2 Mar 10 at 11:12 pm
Here’s what the Catechism of the Catholic Church says on the death penalty:
67 Cf. Lk 23:40-43.
68 John Paul II, Evangelium vitae 56. 69 Cf. Gen 4:10.
C.L.
2 Mar 10 at 11:13 pm
The dead also speak, THR. They also have a right to be heard through their representatives being the prosecutors. They have a right to retribution.
The sanctity of human life is paramount which in my mind means the death penalty is warranted in cases that are so brutal they make you wanna gag.
JC
2 Mar 10 at 11:19 pm
It’s the idea that we can’t bring the dead back to life that i find almsot purposefulness. It’s defeatist and cruel to the memory of the slain. it also eventually leans to evil doers like Victor Chan murderer being released after 18 odd years.
Take a look through those links and argue why the memory of the people they killed ought to be dealt away with view that we can’t bring them back to life.
have a look at this one angel who has been executed.
Summary of incident
Thompson and a co-defendant entered a convenience store and robbed the clerk . When they were leaving the store, Thompson, who possessed a .25-caliber pistol, and the co-defendant, Sammy Butler, who possessed a .38-caliber pistol, fatally shot the store clerk. Thompson and Butler had robbed at least 8 other convenience stores, with three of them involving the fatal shooting of the clerks.
Co-defendants
Sammy Butler
Race and Gender of Victim
Other male
Or this one:
Prior Prison Record
#813933, ten-year sentence for one count of Robbery; 05/11/98 released Shock Probation
Summary of incident
On 01/21/99, in Dallas, Texas, Johnson and one co-defendant were responsible for the death of a 25-year old black female during the commission of a robbery. The courts indicate that Johnson and his codefendant beat the victim about the head with a board and then suffocated her with a shirt and sweater.
Co-defendants
Maxwell, Marcus
The people (jury) decided these worthless thugs receive the death sentence and the judge supervises the trial process. It is not “the State’ the decides.
In fact “the state” in the case of executions is actually carrying out the wish of the people under supervision of a trial judge.
JC
2 Mar 10 at 11:30 pm
I think everyone feels that way about the worst of the worst, JC. We all want to see child molesters and mass murderers fry or be beaten to a pulp. That’s normal. But the question is whether we, as a society, are going to follow that primordial instinct and place vendetta at the heart and pinnacle of the justice system. I have both practical and moral reasons for saying no to that. I don’t acknowledge that the state – excepting special circumstances – has the authority to kill people.
C.L.
2 Mar 10 at 11:30 pm
I meant to add that I totally agree with what you’ve been saying here (and in several other threads over the years) about sentencing in this country. It’s a disgrace.
C.L.
2 Mar 10 at 11:31 pm
The people (jury) decided these worthless thugs receive the death sentence and the judge supervises the trial process. It is not “the State’ the decides.
Agents of the state are the ones literally conducting the execution. The laws of the land are determined by the state, and the judges are appointed by the state.
Even if, hypothetically, we shifted the agency from state-based entities to something community-based (like the Sharia courts in Somalia, or the lynch mobs of old) I still don’t think this changes the fundamentals of the argument.
THR
2 Mar 10 at 11:34 pm
Look I respect what you’re saying, CL. I think the question of life and death is important and I also think the Catholic Church makes fine arguments against the death penalty.
In fact I really do respect the views of the people against capital punishment… even SDFC
Having said that I simply disagree. I Can’t see how we really can respect human life if we don’t have capital punishment as the victims need to be heard and the ultimate respect for life is taking away the life of a evil killer.
JC
2 Mar 10 at 11:41 pm
Nobody should judge victims’ desire for revenge. It’s absolutely understandable.
C.L.
2 Mar 10 at 11:47 pm
Juries are not the agents of the state, THR. They can decide the verdict either way.
An agency agreement carries a sort of expectation that the agent will do the bidding for one party. I don’t see the relationship between the state and the jury that way as the Jury is free to make the decision on their own and there is no power or influence being exerted.
In fact the right of jury selection belongs to both sides and the state not only has no say in terms of who goes on a jury but is extra careful to ensure that a potential juror is not overly influenced one way or another beforehand.
In actual point of fact the state are acting as the servants of the people in carrying out the execution. The bidding or the agency agreement is the other way round in this case.
JC
2 Mar 10 at 11:49 pm
Juries are commissioned directly by the state. I can’t believe you’d argue that the state would be ‘servants of the people’ in executing prisoners. Would you apply this line of thought to the state providing health care and education?
THR
2 Mar 10 at 11:56 pm
Of course the state is the servant of the people, THR. You can’t be executed in a US civil court unless the jury makes that decision. A decision that is unimpeded by the state in any way.
How could you possibly argue otherwise.
The state doesn’t decide on the sentence. The people/jurors do. You may not like the result, but you can’t argue with the way the process is handled.
Would you apply this line of thought to the state providing health care and education
Hardly the same thing. The jury is simply expected to find one way or another on the evidence.
It’s not perfect as no system is. If we took your step further then you would argue that the legal system is so bad it can’t function. However I think he judiciary operates pretty well in the western world.
JC
3 Mar 10 at 12:07 am
It’s fine to say the death penalty should only apply when there is no doubt, but how do you draft rules that only apply to the Martin Bryants? Is there an example of a model jurisdiction that has these rules and still (semi-)regularly executes people?
AJ
3 Mar 10 at 12:15 am
AJ, Japan – in practice – applies (and uses) the death penalty only against those found guilty of multiple murders or single murders with aggravating circumstances.
http://en.wikipedia.org/wiki/Capital_punishment_in_Japan
C.L.
3 Mar 10 at 12:22 am
I still haven’t heard why it is ok for the state to kill members of an invading army, a fair chunk of whom will only be prospective mass murderers, but not ok to kill convicted mass murderers. Why should we grant the absolute right to life to citizens but not foreigners?
Michael Fisk
3 Mar 10 at 2:18 am
Fisk, it’s not really self-defence if you’re killing a guy in a cell. Police can shoot a person who lunges at them with a weapon, but that’s not really the same as capital punishment.
THR
3 Mar 10 at 2:26 am
Fisk, I think the difference is that the latter is, by definition, incarcerated and no longer a threat to anyone. It’s harder to arrest a whole army.
C.L.
3 Mar 10 at 2:30 am
I’m afraid Mike Huckabee’s pro-murder policies have already proven you both wrong. These people ARE a threat so long as they continue to draw breath.
Michael Fisk
3 Mar 10 at 2:40 am
These people ARE a threat so long as they continue to draw breath.
No. Prisoners can be incarcerated for life, and prisons can be managed in such a way that the violence inside is minimal.
THR
3 Mar 10 at 2:49 am
Fisk, that parolee killed again because he was released. I don’t favour ‘early’ release – nor, necessarily, any release – for the worst class of criminals.
C.L.
3 Mar 10 at 2:50 am
“It’s fine to say the death penalty should only apply when there is no doubt, but how do you draft rules that only apply to the Martin Bryants? Is there an example of a model jurisdiction that has these rules and still (semi-)regularly executes people?”
I gave an example very early on. I thought it would please both parties.
Texas is another example of a jurisdiction that only executes aggravated murderers but people keep on bringing this issue up.
http://www.statutes.legis.state.tx.us/Docs/PE/htm/PE.19.htm
*Sec. 19.03. CAPITAL MURDER. (a) A person commits an offense if the person commits murder as defined under Section 19.02(b)(1) and:
(1) the person murders a peace officer or fireman who is acting in the lawful discharge of an official duty and who the person knows is a peace officer or fireman;
(2) the person intentionally commits the murder in the course of committing or attempting to commit kidnapping, burglary, robbery, aggravated sexual assault, arson, obstruction or retaliation, or terroristic threat under Section 22.07(a)(1), (3), (4), (5), or (6);
(3) the person commits the murder for remuneration or the promise of remuneration or employs another to commit the murder for remuneration or the promise of remuneration;
(4) the person commits the murder while escaping or attempting to escape from a penal institution;
(5) the person, while incarcerated in a penal institution, murders another:
(A) who is employed in the operation of the penal institution; or
(B) with the intent to establish, maintain, or participate in a combination or in the profits of a combination;
(6) the person:
(A) while incarcerated for an offense under this section or Section 19.02, murders another; or
(B) while serving a sentence of life imprisonment or a term of 99 years for an offense under Section 20.04, 22.021, or 29.03, murders another;
(7) the person murders more than one person:
(A) during the same criminal transaction; or
(B) during different criminal transactions but the murders are committed pursuant to the same scheme or course of conduct;
(8) the person murders an individual under six years of age; or
(9) the person murders another person in retaliation for or on account of the service or status of the other person as a judge or justice of the supreme court, the court of criminal appeals, a court of appeals, a district court, a criminal district court, a constitutional county court, a statutory county court, a justice court, or a municipal court.
(b) An offense under this section is a capital felony.
(c) If the jury or, when authorized by law, the judge does not find beyond a reasonable doubt that the defendant is guilty of an offense under this section, he may be convicted of murder or of any other lesser included offense.*
Semi Regular Libertarian
3 Mar 10 at 8:44 am
There are certain powers, small in number, that ought never to be handed over to any part of the state. These include the ‘right’ to execute people, to torture people, and so on.
THR, this is not a ‘right’ in any of the senses that we understand a ‘right’. Its certainly not something they can done freely at the states leisure, and it is a power only held by the judiciary which can exercised only in the most limited circumstances having satisfied the most rigorous requirements. So let me add here, that were the latter cannot be satisfactorily secured and the independence of the judiciary is questionable then I would not defend the availability of capital punishment. But, in our circumstances and under our system of justice, I would.
But the question is whether we, as a society, are going to follow that primordial instinct and place vendetta at the heart and pinnacle of the justice system. I have both practical and moral reasons for saying no to that. I don’t acknowledge that the state – excepting special circumstances – has the authority to kill people.
CL, I sympathetic to this perspective but I don’t think it places vendetta at the heart of justice. From my vantage, there are some crimes so heinous that the only appropriate penalty is death, and this is not the shadow of vendetta falling across our justice system but an expression of severity of our revulsion at the crime committed by perpetrator. I would also say that while forgiveness may be a divine trait when exercised by individuals in their private lives it can be disastrous and an indulgence when exercised by states in our public lives.
dover_beach
3 Mar 10 at 10:22 am
debate on death penalty at Menzies House
http://www.menzieshouse.com.au/2010/03/my-death-penalty-is-better-than-yours.html#comments
jtfsoon
3 Mar 10 at 1:42 pm
I still haven’t heard why it is ok for the state to kill members of an invading army, a fair chunk of whom will only be prospective mass murderers, but not ok to kill convicted mass murderers. Why should we grant the absolute right to life to citizens but not foreigners?
It’s pretty simple, Michael. Killing members of an invading army stops an imminent crime being committed. It is crime prevention rather than retribution.
The state (in the form of the Police) already has the power to kill in order to prevent a serious crime being committed, if they have no other choice.
The death penalty is retribution, not prevention (and even if you were to argue it was prevention, there are other methods other than the death penalty that could also prevent the criminal from reoffending, e.g. solitary confinement for the term of his natural life etc).
Yobbo
4 Mar 10 at 2:01 am
THR
You are still using the “state” as it exists under socialism, not liberal democracies such as Australia. In Australia, if the death penalty were re-introduced, yes, citizen-juries would be declaring the will of the people.
Peter Patton
4 Mar 10 at 1:10 pm
But Yobbo, Mike Huckabee has already shown that “life in prison” is not a preventative measure. He released hardened criminals into the public, who then promptly murdered fresh victims. So long as pardons exist in any form, there is always a risk that murderers will be set free. In cases where we are “beyond a shadow of a doubt” as to their guilt, we should execute them.
Michael Fisk
4 Mar 10 at 1:50 pm
“Life” is a bit different to “For the term of his natural life”. A life sentence doesn’t mean prison until you die even if you don’t get pardoned. It means 26 years or something.
Yobbo
5 Mar 10 at 4:04 am
I canvassed quite a few of the legal issues raised in this discussion a while ago, and rather than repeat myself, I’ll just pop up a link:
http://skepticlawyer.com.au/2009/03/09/stereotypes-and-victims-of-crime/
skepticlawyer
5 Mar 10 at 8:27 am