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I get nervous about the death penalty for the same reason I think it should probably be legal: death is irrecoverable. When the state puts someone to death in error, that is an error that should shake the government to its foundations. Basically everyone involved in allowing that to happen should be removed from government office or employment, permanently, and strictly speaking at least some of the police, lawyers, and judges involved seem to have earned the death penalty themselves as a result. And wrongful execution does seem to happen, sometimes, and the consequences for it happening are basically nil; redistributing a bunch of tax money to the family of the innocent deceased is no solution at all.
But by the same token, when a murderer ends someone's life, there's just literally nothing anyone can do to "make it right." We sometimes allocate money to the bereaved, but their loss is inescapably paltry by comparison to the permanent, irrecoverable loss imposed on the deceased. The death penalty is society's way of saying, "the impossibility of restorative justice in these cases means that Hammurabi is all we have left."
Discourse on this topic is frustrating because a rather labyrinthine motte-and-bailey complex has arisen in connection with the retribution/deterrence/rehabilitation theories of criminal justice. In the United States, at least, we refuse to really commit to any particular theory of criminal justice (probably as a result of the democratic process). Instead, we engage in laundered mob justice, demanding our lawyers dress it up in whatever theory has the best fit, or happens to be in fashion. This strikes me as... inadequate.
So I end up being kind of weakly opposed to the death penalty, more because I tend to despise government than because I have any philosophical objections to executing known murderers. This is all in much the way that I vehemently reject the idea that "all cops are bastards," while comfortably believing that, say, "all traffic cops are bastards" is basically correct.
The thing is that such a standard is literally impossible as long as you actually have a death sentence. And as it stands, the death penalty has been purposely turned into a very expensive, time consuming, and private process that because of the time between sentence and execution it has been neutered of any deterrent effects. And while I think the death penalty should only be used in extreme cases, if we’re going to do it, let’s do it such that it has at least some positive effect of deterring people from committing those particularly bad crimes we’re using it on.
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Okay, but the government does things which can’t be made right all the time. So do individuals. Can’t un-drop the bomb, can’t un-eat that cake, can’t put the toothpaste back in the tube. That’s entropy.
But governments can survive scandals, and we might forgive our neighbors, and toothpaste is cheap, anyway. For any detector, the only way to get zero false alarms is never to respond at all. We have some tolerance for errors in proportion to how badly we want something done.
So why is killing different? Why should a mistake costing one life shatter the government? We make decisions with equal permanence, but vastly larger scope, all the time and without insisting on perfection. I don’t think you can develop a permanence-based objection without throwing out most every other core function of government. I’m not sure you can do it without throwing out most core functions of individuals. As soon as interests collide, someone is going to be harmed, and it’ll probably be irrevocable. Any theory which relies on reversing those harms is woefully incomplete.
Keep in mind that the last 4 years have taught us that even intentional mistakes by the government can cost millions of lives. Nobody seems to bat an eye at that (probably because it raised their socioeconomic standing)- whereas the death penalty is not, has the disadvantage of being showy and dramatic, and the media class can't make money off of it.
Isn't "intentional mistake" an oxymoron?
There's a billion possible things ThisIsSin could be referring too, but a simple one would be delaying the COVID vaccine trials so it could not be an October surprise thereby dooming high 4 digit to low 5 digit elderly Americans to dying in winter 2020-2021.
"Intentional mistake" seems like a weird way to describe that. It was an indisputably evil thing done for tactical, realpolitik reasons. The term "mistake" implies that the perpetrators have come to regret that decision, and I very much doubt they have.
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You really think someone would do that? Do the wrong thing on purpose just to spite their enemies?
I don't understand what you mean by "intentional mistake". I understand the concept of doing the wrong thing just for the sake of spiting your enemies. I understand the concept of doing what you thought was the right thing (morally or epistemically) at the time, but later coming to realise you were wrong. But I don't know what "intentional mistake" means in the context in which you're using it.
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Eh? Which part are you talking about?
The simplest explanation is that Daddy Stalin was right about statistics. I don’t find that very compelling from a moral standpoint.
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Amusingly, for largely the same reasons, I find myself mostly ambivalent (and maybe weakly in favor of) the death penalty. IMO for all the advocacy of "life in prison instead," that lifetime in prison isn't recoverable either: "Sorry grandpa, we realize you didn't do it 50 years ago. Here's some cash in exchange for the life you never got" isn't much, if any, better than a mistaken execution. They deserve the same standards of evidence as death penalty cases, at which point we shouldn't really be questioning guilt. The state already claims the right to expend lives in its service or at its discretion --- see The Draft and plenty of generally-approved-of kinetic actions against adversaries, even when those adversaries are citizens, or even the actuarial acceptance of marginal, but measurable increased risks of death in exchange for other goals, like banning DDT.
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I disagree that the death sentence is a qualitatively different punishment from the usual.
We do not have a 100% accurate legal system, or even one that approaches it. It is still, speaking broadly, an acceptable one. I and most people present here have negligible chances of ending up behind bars if we go on leading relatively normal lives.
If I were someone wrongly convicted of a crime, and only released at the hoary age of 80 with a few million dollars as an apology, it isn't much better than being dead. Better, yes, but assuming I was in there for most of my natural life, I would have lived a very substandard existence, I would have lost the opportunities that I cared about.
Life is fungible with time, and time with money.
Look, I get where you're coming from about the irrecoverable nature of death, but I think we're missing the forest for the trees here. Sure, death is final - but so is losing decades of your life to imprisonment. Many seem to consider that there's there's this huge, qualitative difference between execution and long-term incarceration, but I'm not convinced it's as big as we make it out to be.
Think about it - if you're wrongfully convicted at 25 and spend the next 40 years in prison, only to be exonerated at 65, what exactly have you recovered? You've lost the prime of your life, missed out on career opportunities, relationships, family, and pretty much everything that makes life worth living.
Most of us need to donate a decade or two of our lives laboring to make ends meet. And (for the moment), death has been an inevitability for 97 billion anatomically modern humans. You steal my life savings, and I can draw up a figure for the years of my life you've stolen for me.
Keeping someone alive in custody for decades is expensive. Yet, the damage done, if done wrongly, cannot be trivially reversed.
Executing someone, in the USA, even those guilty beyond the shadow of a reasonable doubt, is somehow more expensive, but that speaks more to political opposition and organizational failure than the price of a bullet or a noose. It is not intrinsically difficult or expensive to end a human life, quite the opposite.
You mentioned the idea of Hammurabi being all we have left when restorative justice is impossible. I'd argue that this applies just as much to life sentences as it does to the death penalty. In both cases, we're essentially saying, "We can't undo the harm done, so we're going to remove this person from society permanently."
And that may as well be cheaply. Because the rest of us are paying for it with our finite time and money. Not without due process, extra care even, but the kind of people who end up on Death Row aren't particularly sympathetic characters if the recent discussion about the questionable candidates that the Innocence Project were forced to advocate for are any indication.
I'm an unabashed transhumanist. I think there is a very significant probability that human lifespans could be made nearly unbounded in the span of our current life expectancies. I think it's a tragedy that anyone dies, especially today, when the end is potentially in sight. That only changed the values of the calculus, not the core of it. Still, beyond wishful optimism, I know no reason to assume that humans can live literally forever, not while thermodynamics and Feynmann's quip about it stands. But as the world exists, reformative and restorative justice seem farcical to me. The closest we can get those congenitally inclined towards to criminality to desist within the tender caress of a prison is to age them out of their proclivities. While still outside, with the fear of swift and likely punishment (hence why the perceived odds of being brought to justice outweigh the kind of justice involved, the death penalty isn't a detterent over life in prison). Thus, without access to better ways of removing the crime from the criminal, we keep them away from those they might hurt. Maybe one day we'll be able to edit minds or genes to turn even the most murderous maniac into someone who sobs at the idea of hurting a fly, but that day isn't today. If the possibility of killing someone before that eventuality seems too much, oh well, cryopreserving their brains in a vat preserves some possibility of reform even after death, and is more than their victims received. It's a rounding error compared to the costs of trial, prison, or execution at the end.
Almost all societies recognize the necessity of governments making hard decisions, often unpleasant decisions, about who goes behind bars and who dies. We simply have to choose how to calibrate that curve, decide how many innocent men die and how many guilty men go free. For a functional society, the optimal number of either is not zero. When you bite that bullet, I genuinely don't see any reason to be squeamish about the most villainous biting theirs.
The only extra care given to capital cases in the United States is the bifurcated nature of the trial with both guilt and penalty phases and the requirement for death-qualified juries. While these impart some additional amount of time and expense, the biggest contributing factor is the lengthy appeals process. This is what's usually in the crosshairs of people who want to speed up the execution process, because it's the most obvious contributing factor; the trials may take a bit longer, but people don't start the clock on these things until after the sentence is pronounced. The problem, though, isn't that the appeals process is any different for capital cases than it is for other cases, but that the entire process is almost always utilized.
Most criminal convictions in the US are the result of plea bargains, and there isn't much to appeal in those cases. You could theoretically claim that an incompetent attorney talked you into taking a bad deal, but winning that appeal would at best get you a trial, at which you could be convicted and sentenced to a stiffer penalty. So no point in appealing that unless the situation is desperate or your attorney really likes your chances of winning. Also if there's a DNA exoneration or something like that, but those are rare. Even without a plea, though, most defendants don't appeal because it simply isn't worth it. Defendants who do appeal will usually only do so when there are clear avenues for appeal, and they will limit their appeal to those avenues. They'll also usually stop after losing at the first stage, and will only press further if there's a serious constitutional issue at stake.
Death penalty cases never result from plea bargains, and the defendants have no incentive to not file every appeal they can. So rather than focus on a few key issues they'll throw the entire record into question. Challenge everything in there that can be challenged. And capital cases are complicated and bifurcated so they have incredibly long records. This means the prosecutor has to wade through thousands of pages of trial transcripts to properly contest the appeal, and he's on the public payroll. So take your appeal to the intermediate appellate court and wait a couple years. When that appeal is rejected, take it to the state supreme court to be rejected (some states have tried to short-circuit this process by giving all capital appeals directly to the supreme court). Then maybe appeal that ruling to the US Supreme Court. They probably won't take it, but you'll by some time waiting for them to deny cert.
By this point, your appeals are exhausted, but that's not the end of it. Now you start filing for post-conviction relief. This is where you argue that defects outside the record merit reconsideration. Things like ineffective assistance of counsel, discovery of new evidence, and an intervening court decision. These also take a while. But then after that you get to argue the same things in a Federal habeas corpus petition. All of this by itself take a long time, but in a significant number of cases the defendant actually wins an appeal or a motion for relief. The thing is that winning these doesn't get you out of jail, but simply gets you a new trial, or a new sentencing phase. So now the defendant goes back to square one (or two) and starts the whole process over again.
The incentives in this process line up so that the goal is to expend as much time as possible. Someone serving a ten year sentence isn't going to do it this way because he's probably going to be out of prison before the appeals are exhausted. Someone serving a life sentence isn't going to do this because if they can theoretically get out they want out as fast as possible; buying time does nothing. But death row inmates aren't that stupid (or at least their attorneys aren't). Any postponement is a bonus, even if the end result is the same.
I honestly don't see any way around this. I understand the sentiment around not wanting to waste time, but these are protections that are enjoyed by everybody, and we have to look beyond death row if we want to scuttle them. Yeah, most death row inmates are total pieces of shit, but in some cases there really were serious procedural mistakes, in some cases there really was ineffective counsel, and there occasionally are exonerations. I'm not comfortable with the idea of intentionally scuttling constitutional protections across the board for the sole purpose of making it easier to execute people. I'm not sure what exactly is gained from that.
I think the answer is 'fast track appeals, so capital cases who appeal their sentence get a hearing almost immediately, and if they lose, it's over quickly'.
That sounds good in theory, but the reality is that court backlogs aren't the reason these cases take so long to resolve, and trying to force the issue actually increases the chance that the prosecution loses. Technically speaking, appeals are on a strict timeline. In reality, like most things in law, nothing is that strict. I can't speak for all states, but here's how it works in Pennsylvania:
After sentencing, the defense has 10 days to file a post-trial motion. This is where you list all the errors you think the court made and politely ask the court to reconsider them. Since you only have ten days to file, though, you pro-forma list every adverse decision the judge made. At this point, the judge has 120 days to grant or deny the relief. Since these motions are rarely granted, the default is that if no decision has been rendered in 120 days, they are automatically denied. Since this doesn't require the judge to actually do anything, you can expect to wait the full 120 days. Then you have 30 days to file notice of appeal. Once the notice is filed, the court will send a docketing statement, that has a deadline by which you must file a Statement of Errors with the trial court. Except you just got the transcript after 4 months, and this transcript is 11,000 pages long, and you need time to go through it to catch all the errors. So 2 weeks before the Statement is due, you file a motion with the court for an extension, which they grant, because the prosecution doesn't oppose it, because if they did then defense counsel would never agree to their extension requests. So the deadline gets extended by a month.
Once the Statement is finally submitted, the trial judge has to actually respond to every argument. And he's going to take his sweet time responding because he's about to start another trial which he isn't about to postpone for the third time just so he can respond to your long-shot motion, so add another couple months onto that. Once he's explained why your arguments are bullshit, you have to file a brief in support of your motion, which you nominally have 30 days to do but which you're going to ask for an extension on because you've raised so many issues that you need time to properly research the issues and apply the law to the facts in this monster transcript. And the prosecution again raises no opposition, because they don't exactly have an attorney assigned to handling this appeal and the trial team are all busy trying to incarcerate criminals who aren't in jail indefinitely and don't have the time to spend going through that 11,000 page transcript themselves and countering all of your arguments. After all, if they contest your motion then you're not exactly going to be inclined to grant them any extensions, which means their brief would be dogshit and you'd waive oral argument while the appeals court remands the case for a new trial and they're back to square one. So you get your extension. And since you got your extension, you're in no position to request their request for an extension, and they get one as well. And once you get their brief you now have 14 days to file a reply brief, which you probably don't do unless they made a particularly bad argument, but anyway. Now, a year and a half after sentencing, we're finally at the point where the case can even get scheduled for argument.
The upshot is that it's not so much the court's time that's the problem but the attorneys' time. We can certainly increase the speed of these appeals by hiring dedicated appellate teams for local DA's offices, but these offices don't have the budgets to fully staff their offices as it is. Why would we prioritize these cases? These defendants have already been convicted and are going to be in jail forever and a day regardless of what happens. Every capital case that gets fast tracked means another case gets bumped. Is this really more important than a free speech case? Or a case where there are legitimate questions about illegal searches? Or even a commercial case where the law is genuinely ambiguous? Shouldn't we dedicate what limited resources we have toward prosecuting crimes where the defendants haven't been convicted and might not be? Or do we raise local taxes to give DA's offices more money? That won't sit well in red areas. In Washington County, a rural/exurban county outside of Pittsburgh, the new DA has decided to make a statement by charging every murder he can as a capital case. His first year in office there were 9 murders in a county of about 200,000 people. He charged 5 capital cases, including 1 woman whose only connection to the crime was that her fingerprint had been found on a shell casing. This isn't a particularly large office. He probably could've gotten plea deals on most of these, but instead he has to waste taxpayer money on a quixotic attempt at securing the death penalty in a state that has a moratorium on executions, and that is considering abolishing capital punishment on the grounds that it's an inefficient generator of the bullshit described above.
I greatly doubt that this would actually result in expedited processes. The legal profession is hardly alone in finding that the amount of putative work that exists tends to increase to meet the number of individuals that are doing that work, but it's a stark example of the phenomenon. The United States has no shortage of attorneys, but legal proceedings have tended to increase in length rather than becoming quick and straightforward processes. Much like many of the other issues caused by endless legal wrangling and treating obvious bullshit as worth 120 day waiting periods, these aren't problems with no known solution to man, but problems created by the legal profession and the love its practitioners hold for artificial complication.
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Nominating for a late-in-the-game AAQC purely on the strength of that marvelous closing sentence.
Heh. I can't resist to throw in some alliteration, a pinch of prpsody, and I'm glad someone appreciates it!
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I agree with pretty much all of this, though I’d add the autobiographical aside that my views on the death penalty have gone from strongly opposed on principle a decade or so ago to weakly opposed on procedure today. Extrapolating my direction of travel, I can see myself overcoming my procedural scruples in time.
That said, it’s quite puzzling to me from a rationality and decision-theoretic framework to incorporate these kinds of predicted value-shifts into your views. For example, imagine I anticipate becoming significantly wealthier next year, and I observe that previously when I’ve become wealthier my views on tax policy have become more libertarian. What’s the rational move here? Should I try to fight against this anticipated value shift? Should I begin incorporating it now? Should I say what will be will be, and just wait for it to happen? Should I actively try to avoid becoming wealthier because that will predictably compromise my values?
Related to some AI discussions around final vs instrumental goals, and under what circumstances it can be rational to consent to a policy that will shift one’s terminal values.
Isn't this the problem that Rawls' Veil of Ignorance is designed to solve?
Given, that is normally offered to justify a socialist solution to problems. The Veil of Ignorance is offered to the rich man to say, imagine if you were poor, wouldn't you prefer a socialist system?
But there's nothing in the mechanics of the Veil of Ignorance that prevents it from being used the opposite way: imagine you were rich, would you dislike any of the redistributive policies you currently advocate for?
Given, it suffers from the flaw of many philosophical tools, in that it relies on "then think really hard about it" as the final step. But it's the clear solution to the value shifts: try to imagine a system of values that would appeal to you regardless of your position.
I don't at all agree with Rawls, but I think the point is that there are far fewer rich than poor.
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There is, the mechanic is "would you hate being poor in a dog-eat-dog world more than you'd hate being taxed a lot as a rich man?".
@anon_
Sure, but that's just a percentage thing, easily disposed of. Rawls would tell you that some degree of redistribution is optimal, but it can still justify Capitalism on a "more goods produced" logic, and set the level of redistribution to maximize everyone's happiness. That's a logic that holds from behind a veil of ignorance. What one shouldn't do within Rawls' paradigm is undertake policies that are not overall utility-maximizing.
Nor is mere quantity of poor and rich people enough to make anything justifiable. Neutral between whether I am the one or the other, I can still feel that there is some level of "fans harassing famous person" that isn't morally correct, for example.
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The kind of values shift I have in mind is one that is indifferent to one's position, i.e., not just filling in the variable according to one's position within it. For example, imagine you have a choice of three college courses you can take: one on libertarianism, one on Marxism, and one on library research. The first two are probably going to be more interesting, but you're also aware that they're taught by brilliant scholars of the relevant political persuasion, and you'll be acquainted with relevant rationally persuasive evidence in support of this position. Consequently, you know that if you take the libertarianism course, you'll come away more libertarian, if you take the Marxist course you'll come away more Marxist, and if you take the library research course you'll come away knowing more about libraries. Assuming the first two courses would indeed involve a values transition, under what circumstances might it be rational to undergo it?
If you really knew in advance that the courses contain rationally persuasive evidence for X, you should immediately believe X even without taking the courses based on your knowledge that the rationally persuasive evidence exists.
I doubt that you know that the courses contain rationally persuasive evidence for X. What you do know is that after taking such courses, you feel that you have been rationally persuaded. But being irrationally persuaded feels like being rationally persuaded.
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On the off-chance you aren't aware of this already, a similar thought experiment is discussed in Parfit's "Reasons and Persons" and Korsgaard's "Self-Constitution".
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I'm not sure it's ever rational to choose which values you will be inculcated in and then forget all about the choice. Ie if you take the course on Marxism, you should later realize that fact and keep it in mind when making value judgments.
Nor am I sure such a thing is entirely possible. I know I spent years of my life trying to shop for a religion that would inculcate values that I liked, only to realize that it was impossible to really believe in a religion learned under those circumstances.
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I think it's the sign of a particularly self-aware mind. The spectrum would go like this:
Personally I have always had a hard time pinning down my actual beliefs. I have the habit of being a devil's advocate in the extreme, defending positions whenever I see a hint that they might actually be defensible. So I would probably incorporate the anticipated value shift, even if I find myself on shakier ground to defend for now.
I'd go one step further. What he expressed is closer to
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I first saw this taxonomy on the perhaps slightly unfortunately named Hoe Math YouTube channel. Is that where you caught it too, or is it a more established framework?
No, that's just how I schematize it personally. Thanks for the link, though, that's a very interesting video!
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