Category Archives: Crime and Punishment

Why Conservatives and Libertarians Should Oppose the Death Penalty

"Old Main" NM State Penitentiary

Are you pro-life? Opposed to big government? Do you believe in reducing government spending? Do you support the death penalty? If you answered yes to all of these questions, then you may want to re-think your position on the death penalty. As supporters of life, liberty, property, and limited government, I believe that all conservatives and libertarians should oppose the death penalty.

Conservative Death Penalty

I used to be a staunch supporter of the death penalty. I firmly believed that one should repay an “eye for an eye” or a “life for a life.” I can remember exactly where I was when I reformed these beliefs. It was on January 23, 2006 and I was participating in the March for Life in Washington DC. As I was walking down Pennsylvania Ave, I noticed a sign that read: “Pro-Life No Exceptions.” I thought back to the many debates with my girlfriend at the time, when she would ask me how I could be pro-life but still support the death penalty. Being pro-life, I had to ask myself, “how could I say that I support life, but support the state-sanctioned taking of life?”

Cost of the Death Penalty

Furthermore, as someone who believes in limited government, I also had to ask myself another important question. “If I don’t trust the government to make decisions about my wallet, how can I trust the government to make decisions about killing people?” Crazy, right? Oftentimes, we conservatives and libertarians rail against government spending, and rightfully so. So why do we still overwhelmingly support a policy that costs taxpayers about four times more than cases where the death penalty is not involved?

This figure only takes into account the cost of trial. We also have to take into account the costs for appeals and to house prisoners. According to Forbes:

And let’s not forget about appeals: in Idaho, the State Appellate Public Defenders office spent about 44 times more time on a typical death penalty appeal than on a life sentence appeal (downloads as a pdf): almost 8,000 hours per capital defendant compared to about 180 hours per non-death penalty defendant. New York state projected that the death penalty costs the state $1.8 million per case just through trial and initial appeal.
It costs more to house death penalty prisoners, as well. In Kansas, housing prisoners on death row costs more than twice as much per year ($49,380) as for prisoners in the general population ($24,690). In California, incarceration costs for death penalty prisoners totaled more than $1 billion from 1978 to 2011 (total costs outside of incarceration were another $3 billion). By the numbers, the annual cost of the death penalty in the state of California is $137 million compared to the cost of lifetime incarceration of $11.5 million.

 

The Death Penalty and Crime Deterrence

I often hear the argument that the death penalty is the best method of reducing the murder rate. After all, if one is facing the threat of death, one would be less likely to commit murder, right? Well, according to the Death Penalty Information Center, states which impose the death penalty had an average of 4.4 murders per 100,000 people as opposed to only 3.4 murders per 100,000 people in non-death penalty states.

Death Penalty

Furthermore, let’s look at the murder rate based on region. According to the Death Penalty Information Center, the South consistently has the highest murder rate per capita, yet they have, by far, the most executions (as the chart shows below) since the death penalty was reinstated by the Supreme Court in Gregg v. Georgia in 1976.

MURDER RATES PER 100,000 PEOPLE

REGION 2013 2012 2011 2010 2009 2008 2007 2006 2005 2004 2003 2002 2001 EXECUTIONS SINCE 1976(As of 11/19/14)
South 5.3 5.5 5.5 5.6 6.1 6.6 7.0 6.8 6.6 6.6 6.9 6.8 6.7 1133
Midwest 4.5 4.7 4.5 4.4 4.6 4.8 4.9 5.0 4.9 4.7 4.9 5.1 5.3 170
West 4.0 4.2 4.2 4.2 4.6 5.0 5.3 5.6 5.8 5.7 5.7 5.7 5.5 85
Northeast 3.5 3.8 3.9 4.2 3.8 4.2 4.1 4.5 4.4 4.2 4.2 4.1 4.2 4
NATIONAL RATE 4.5 4.7 4.7 4.8 5.0 5.4 5.6 5.7 5.6 5.5 5.7 5.6 5.6

If the death penalty is a deterrent for crime, shouldn’t the states with the most executions have the lowest murder rate per capita?

The Death Penalty and The InnocentJackson Innocent

According to the Innocence Project, at least ten people have been executed in cases where there is evidence that may exonerate them. Since 1973, 150 people on death row have been exonerated through new evidence and been pardoned, acquitted by a new trial, or had their charges dismissed. In 2014 alone, seven death-row inmates were exonerated including Ricky Jackson and Wiley Bridgeman, who were convicted of murder in 1975. These men spent 39 years on death row, their entire adult lives. Yet if supporters of the death penalty had their way, these men would have been executed 38 years ago.

I prefer to adhere to the saying by conservative jurist Sir BlackstoneWilliam Blackstone that “It is better that ten guilty persons escape than that one innocent suffer.”

 

Albert holds a J.D. from Barry University School of Law as well as an MBA and BA in Political Science from The University of Central Florida. He is a conservative libertarian and his interests include judicial politics, criminal procedure, and elections. He has one son, named Albert, and a black lab puppy, named Lincoln. In his spare time, he plays and coaches soccer.

NYC Cop Rebellion Highlights Complicated Interplay Between Freedom and the Rule of Law

MLK

Some laws are so egregious they ought morally be resisted, however destabilizing such resistance might be. Only the most mindlessly authoritarian would disagree.

The hard part is knowing where to draw the lines.

New York City cops are in rebellion, taking a de facto hiatus from policing victimless “crimes.” Whether this is an “important step” toward improved safety and constitutional policing, or a dire threat to the rule of law, seems all a matter of perspective. Cops being as diverse as humans generally, their motivations presumably range from “[a]cting like a bunch of high-school jocks protesting a ban on keg parties” all the way to heartfelt questions about the legitimacy of a system that leaves a man dead for the “crime” of selling loose cigarettes.

Either way, the reduced issuance of petty crime summonses and parking violations will starve the city of revenue, while endangering no one. This strategy, of hurting the mayor’s budget without turning a blind eye to real crime, exposes an unpleasant truth about modern policing: that cops are sent out armed with guns to risk their lives ginning up revenues needed to cover budget shortfalls.

Let that sink in.

I understand the importance of the rule of law. But morality dictates consideration of a system that encourages forceful interaction over such trivialities as selling loose cigarettes, and for the purpose of insulating politicians from the consequences of overspending.

The rule of law is but a means to an end, not an end in itself.

A provocative law review article entitled “The Myth of the Rule of Law” asks the reader to consider the following:

“Congress shall make no law . . . abridging the freedom of speech, or of the press; . . . .”

On the basis of your personal understanding of this sentence’s meaning (not your knowledge of constitutional law), please indicate whether you believe the following sentences to be true or false.

_____ 1) In time of war, a federal statute may be passed prohibiting citizens from revealing military secrets to the enemy.

_____ 2) The President may issue an executive order prohibiting public criticism of his administration.

_____ 3) Congress may pass a law prohibiting museums from exhibiting photographs and paintings depicting homosexual activity.

_____ 4) A federal statute may be passed prohibiting a citizen from falsely shouting “fire” in a crowded theater.

_____ 5) Congress may pass a law prohibiting dancing to rock and roll music.

_____ 6) The Internal Revenue Service may issue a regulation prohibiting the publication of a book explaining how to cheat on your taxes and get away with it.

_____ 7) Congress may pass a statute prohibiting flag burning.

After exploring ways in which seemingly clear rules of law are malleable to reach different ends, based on the perspective of those with the power to apply them, the piece returns to those initial questions:

If your response to question one was “True,” you chose to interpret the word “no” as used in the First Amendment to mean “some.”

If your response to question two was “False,” you chose to interpret the word “Congress” to refer to the President of the United States and the word “law” to refer to an executive order.

If your response to question three was “False,” you chose to interpret the words “speech” and “press” to refer to the exhibition of photographs and paintings.

If your response to question four was “True,” you have underscored your belief that the word “no” really means “some.”

If your response to question five was “False,” you chose to interpret the words “speech” and “press” to refer to dancing to rock and roll music.

If your response to question six was “False,” you chose to interpret the word “Congress” to refer to the Internal Revenue Service and the word “law” to refer to an IRS regulation.

If your response to question seven was “False,” you chose to interpret the words “speech” and “press” to refer to the act of burning a flag.

Why did you do this? Were your responses based on the “plain meaning” of the words or on certain normative beliefs you hold about the extent to which the federal government should be allowed to interfere with citizens’ expressive activities?

My own answer would have been that the First Amendment neither permits nor prohibits anything. The First Amendment is nothing more than words on paper, incapable of doing anything. It is only our collective willingness to enforce, expand or modify it that has any function; that sufficient numbers of us agree, consciously or not, to permit the exercise of collective force to do one or the other; and that sufficient numbers more passively do not resist.

We are unavoidably a nation of both laws and men, and needed change comes in many forms. Sometimes it comes because democratically elected representatives vote for it. Sometimes it comes because one person stops allowing her complicity to lend legitimacy to a bad law.

It bears remembering that enforcing the rule of law was what five New York City officers were doing when they placed Eric Garner in a grapple hold for the “crime” of selling loose cigarettes. As Professor Stephen L. Carter eloquently wrote:

It’s unlikely that the New York legislature, in creating the crime of selling untaxed cigarettes, imagined that anyone would die for violating it. But a wise legislator would give the matter some thought before creating a crime. Officials who fail to take into account the obvious fact that the laws they’re so eager to pass will be enforced at the point of a gun cannot fairly be described as public servants.

*    *     *

Of course, activists on the right and the left tend to believe that all of their causes are of great importance. Whatever they want to ban or require, they seem unalterably persuaded that the use of state power is appropriate.

That’s too bad. Every new law requires enforcement; every act of enforcement includes the possibility of violence. There are many painful lessons to be drawn from the Garner tragedy, but one of them, sadly, is… : Don’t ever fight to make something illegal unless you’re willing to risk the lives of your fellow citizens to get your way.

Some of the loudest complaints about police misconduct are from the same people who demand a leviathan government exercising control over vast areas of our lives. Such control must of necessity be exercised in the form of laws, laws that must be enforced at the point of a gun.

We all draw lines somewhere, between the laws we think ought be enforced, however misguided they might be, for the sake of preserving the legitimacy of the system; laws so egregious and vile in nature, that they must morally be resisted; and those that fall somewhere between, the close calls and grey area where good faith disagreement can be tolerated. The criteria we use, the lines we draw, are inherently subjective.

We should not ask cops to enforce laws that we are unwilling to have them kill to enforce. We should not risk lives enforcing prohibitions against victimless crimes.

If a rebellion by New York City cops is how this change comes—I can live with that.

Sarah Baker is a libertarian, attorney and writer. She lives in Montana with her daughter and a house full of pets.

Quote of the Day: A Question for “Pro-Life” Death Penalty Advocates Edition

Matthew DesOrmeaux over at United Liberty poses a very important question to those in the “pro-life” community who support the death penalty. This question comes in response to a South Carolina judge vacating the conviction of George Stinney Jr. who was executed at the age of 14 in 1944.

Is the execution of an innocent person, even a child, enough to undermine faith in the criminal justice system as a whole, and capital punishment in particular? If one error is not convincing enough, is there some acceptable level of innocent life ended at the hands of the state (or their peers, if that makes you feel better) that would change your mind? Or is the (spurious) deterrent factor of the death penalty or faith in the process, regardless of further evidence, so strong as to make all wrongful convictions and executions irrelevant?

I’ve already seen one person respond in the comments section to the effect “Well that was during Jim Crow [1]; our criminal justice system is so much better now.”

Even as cynical as I am about the American criminal justice system, I believe it’s fair to say that there has been some improvements since 1944. I cannot imagine a 14 year-old being executed in 2014 (someone with the mental capacity of less than a 14 year-old…sadly yes but not an actual 14 year-old). DesOrmeaux’s overall point is relevant as the National Academy of Sciences found that currently 1 in 25 death row prisoners is innocent.

With the learning curve so steep for supporters of capital punishment, at this rate it will be 2074 by the time a Texas judge admits that Rick Perry allowed (likely innocent) Cameron Todd Willingham to be executed on his watch.

[1] For what it’s worth, George Stinney Jr. was black.

A Public Service for Our Readers Regarding Federal Drug Enforcement

We are posting this as a public service and informational notice, for our cannabis using, interested, curious, or just plain liberty oriented readers and friends…

Contrary to articles such as this:

Congress Effectively Ends The Federal Ban On Medical Marijuana
HighTimes

It seems the controversial $1.1T spending bill that is preventing the U.S. government from shutting down is chock full of surprises.

As you may know, much to the dismay of marijuana activists and lovers of democracy everywhere, the bill smacked down Washington DCs referendum that legalized recreational marijuana in the nation’s capital. What you may have missed (because those shifty politicians are doing everything under the table) is that the bill also quietly, but effectively lifted the federal ban on medical marijuana.

Let us be VERY clear… NO the federal government has not legalized, or ended the federal prohibition of medical marijuana.

No, really, they didn’t, no matter what High Times says.

Manufacture, distribution, transportation, storage, sale, possession, and use, of Marijuana are all still federal crimes. Further, they are automatic disqualification on a background check, or a drug test, or a security clearance etc… etc…

They also make one a prohibited person with respect to firearms, explosives, and destructive devices.

Yes… even in Washington and Colorado. 

All they did in this omnibus appropriations bill, was to partially defund and deprioritize enforcement of federal marijuana prohibition, against medical marijuana dispensaries only (NOT grow ops, or users) in those states with medical marijuana, between January and September.

That’s it. 

Here is the actual text, of the portion  of the bill in question:

“Sec. 538. None of the funds made available in this Act to the Department of Justice may be used, with respect to the States of Alabama, Alaska, Arizona, California, Colorado, Connecticut, Delaware, District of Columbia, Florida, Hawaii, Illinois, Iowa, Kentucky, Maine, Maryland, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Montana, Nevada, New Hampshire, New Jersey, New Mexico, Oregon, Rhode Island, South Carolina, Tennessee, Utah, Vermont, Washington, and Wisconsin, to prevent such States from implementing their own State laws that authorize the use, distribution, possession, or cultivation of medical marijuana. Sec. 539. None of the funds made available by this Act may be used in contravention of section 7606 (“Legitimacy of Industrial Hemp Research”) of the Agricultural Act of 2014 (Public Law 113-79) by the Department of Justice or the Drug Enforcement Administration.”

There has been no real change in the law, there is just a change in the administration of a small subset of enforcement.

In fact, this action makes getting the changes we need in the law harder and less likely.

Far worse though, it furthers the toxic notion that we can just arbitrarily, capriciously, and disparately, choose to not enforce the law, when we feel like it… But then any time we change our mind we can go ahead and start enforcing it again.

This disrespects and debases the very foundation of rule of law.

I am a cynically romantic optimistic pessimist. I am neither liberal, nor conservative. I am a (somewhat disgruntled) muscular minarchist… something like a constructive anarchist.

Basically what that means, is that I believe, all things being equal, responsible adults should be able to do whatever the hell they want to do, so long as nobody’s getting hurt, who isn’t paying extra

Torture and Denial

torture

If the tiny percentage of the torture documents that were released yesterday should give us a clue about anything, it should be the degree to which the federal government officials and politicians lie to cover their own asses. Those of us who called for the documents to be released were admonished that in releasing them, U.S. troops and diplomats will be put in greater danger. Of course if these “enhanced interrogation” techniques aren’t really “torture,” then it seems to me that those who are fearful of the release should have nothing to worry about (one can’t have it both ways). Why not prove to the world that everything going on at Gitmo and the various black sites are on the up-and-up?

Of course then there’s the argument: “The Bush administration/CIA/Senate did not know nor approve some of these techniques…”

Ah, the good old “plausible deniability” excuse. The people in charge can’t be held responsible because some underlings decided to go all Jack Bauer on the detainees.

no evil

Of course then there is the ass-coverer-in-chief President Obama responding to the report:

Today’s report by the Senate Select Committee on Intelligence details one element of our nation’s response to 9/11—the CIA’s detention and interrogation program, which I formally ended on one of my first days in office. The report documents a troubling program involving enhanced interrogation techniques on terrorism suspects in secret facilities outside the United States, and it reinforces my long-held view that these harsh methods were not only inconsistent with our values as nation, they did not serve our broader counterterrorism efforts or our national security interests […] That is why I will continue to use my authority as President to make sure we never resort to those methods again.

President Obama is trying to convince the world that torture is a thing of the past which occurred when George W. Bush was president. Obama, we are to believe, ended torture on one of his first days in office. We are supposed to forget that he was also supposed to close Guantanamo Bay and that he has a secret kill list which sometimes includes American citizens (killing people without any sort of due process with a drone is morally superior to torture, you see).

Beyond this, President Obama is also misleading the world about no longer torturing detainees at the now infamous island prison which he promised to close. As The Intercept reports:

Abu Wa’el Dhiab, a 43-year old Syrian national, was among the six Guantanamo Bay prisoners freed last week and transferred to Uruguay after spending 13 years in U.S. detention. He had been cleared for release since 2009, yet the husband and father of three found himself imprisoned several years longer in circumstances characterized by indefinite detention, humiliation and inhumane treatment.

In response to what they saw as their increasingly desperate conditions, Dhiab and many other Guantanamo detainees repeatedly sought to employ the only means of resistance left available to them: refusing food. “We have given up the very things which are important: food and drink,” Dhiab stated last year, describing his motivations and those of his other hunger-striking prisoners. “And we have done so to get answers to our questions: What is our guilt and what is our crime?”

I suppose President Obama can use weasel words about not using torture to interrogate detainees but clearly torture is being used for other such things as force-feeding. Skipping ahead a little, the article continues:

While military officials may be able to casually characterize the force-feeding of such prisoners as some kind of innocuous guard-detainee interaction, they are correct that many others in the United States and around the world would likely not have the same reaction to such footage.

So far, the actual videos remain classified. At the end of The Intercept article a video was posted to show what is difficult to convey in words. The video (below) is a re-creation of what this force-feeding looks like.

Does this look like torture to you?

No?

Suppose it was American soldiers subjected to this treatment as well as what was detailed in the torture report? Would you still consider these techniques as “enhanced” but not torture? Suppose it was your own son?

Even if you think that it is permissible to treat actual terrorists this way, we should all agree that keeping individuals who haven’t been charged (again, this includes American citizens) or who have been cleared of any wrong doing should not be treated this way and should be returned to their homes.

We the people have the right to know what is being done in our name. The rest of the world needs to know that not all of us approve of what is being done in our name.

1 2 3 4 5 66