August 15, 2007

I'm opposed to the death penalty, but I still want journalism about executions to play it straight.

Here's ABC News presenting the supposed facts underlying a death sentence. The headline is "Man to Be Executed, Although Prosecutors Say He Didn't Kill," and there's a photograph of the man holding up his hands against the prison glass to "touch" the hands of a young woman, his "new wife," who is smiling for the camera and wearing a pink scrunchy in her hair:
On the night of Aug. 14, 1997, Foster, Brown, DeWayne Dillard, and Julius Steen were drinking and smoking marijuana when they decided to use Dillard's gun to commit two armed robberies, according to Foster's attorney, Keith Hampton.

As they drove home, LaHood's girlfriend Mary Patrick appeared to flag their car down. According to testimony from Dillard and Steen, the car pulled over and Brown exited the vehicle. There had been no discussion that he would rob or kill LaHood, and he was effectively "acting out of an independent impulse," according to testimony.

After Brown shot LaHood, Foster, who was 19 at the time, became very anxious and started to leave the scene, but Dillard and Steen made him wait for Brown to get back in the car. They drove off, but were arrested shortly thereafter, Hampton said.

Foster, who was tried alongside Brown, rather than given a separate trial, is charged under a Texas "law of parties" statute that disintegrates the distinction between the perpetrator of a crime and an accomplice, allowing Foster to be put to death, even though he did not actually pull the trigger.

Dillard and Steen both cooperated with the government and were given plea deals, Hampton said. Brown had testified that he acted in self-defense, but the jury didn't buy that argument, and both he and Foster were sentenced to death.
Here are the facts as stated by the Fifth Circuit federal Court of Appeals (PDF) as it denies habeas review of the state court proceedings:
On the evening of 14 August 1996, Foster and three others - Mauriceo Brown, DeWayne Dillard, and Julius Steen - embarked on armed robberies around San Antonio, Texas, beginning with Brown's announcing he had a gun and asking whether the others wanted to rob people: "I have the strap, do you all want to jack?". During the guilt/innocence phase of Foster's trial, Steen testified he rode in the front seat, looking for potential victims, while Foster drove.

Steen and Brown testified to robbing two different groups at gunpoint that night; the four men divided the stolen property equally. The criminal conduct continued into the early hours of the next day (15 August), when Foster began following a vehicle driven by Mary Patrick.

Patrick testified: she and Michael LaHood, Jr. were returning in separate cars to his house; she arrived and noticed Foster's vehicle turn around and stop in front of Michael LaHood's house; Patrick approached Foster's vehicle to ascertain who was following her; she briefly spoke to the men in the vehicle, then walked away towards Michael LaHood, who had reached the house and exited his vehicle; she saw a man with a scarf across his face and a gun in his hand exit Foster's vehicle and approach her and Michael LaHood; Michael LaHood told her to go inside the house, and she ran towards the door, but tripped and fell; she looked back and saw the gunman pointing a gun at Michael LaHood's face, demanding his keys, money, and wallet; Michael LaHood responded that Patrick had the keys; and Patrick heard a loud bang.

Michael LaHood died from a gunshot wound to the head. The barrel of the gun was no more than six inches from his head when he was shot; it was likely closer than that. Brown had similarly stuck his gun in the faces of some of the night's earlier robbery victims.

Later that day, all four men were arrested; each gave a written statement identifying Brown as the shooter. Brown admitted being the shooter but denied intent to kill. He testified that he approached Michael LaHood to obtain Patrick's telephone number and only drew his weapon when he saw what appeared to be a gun in Michael LaHood's possession and heard what sounded to him like the click of an automatic weapon.

In May 1997, Foster and Brown were tried jointly for capital murder committed in the course of a robbery. The jury found each guilty of that charge and answered the special issues at the penalty phase to impose a death sentence for each.
I agree with those who think that the sentence is too harsh, and, again, I am opposed to the death penalty, but journalists need to report the facts in an accurate and neutral fashion, not from an advocate's position. If I am to believe the Fifth Circuit case, Foster was driving the car that stalked Patrick, something you can't tell from the ABC article, which uses expressions like "As they drove home" and "the car pulled over" to make Foster seem less important than he apparently was. "There had been no discussion that he would rob or kill LaHood," writes ABC. Yes, but Foster joined a man who had displayed a gun and proposed a robbery spree. He drove around with that man sitting by him in the front seat as they looked for victims -- not LaHood, specifically. By the time they got to LaHood, they'd already robbed two groups of people and split the proceeds, and Foster was still driving the car. Tell the facts straight. Don't manipulate us with something that reads like a brief for the condemned man. I want to understand why people saw fit to give him the death penalty. From there, I can still see how one could fairly and persuasively make the argument that he shouldn't die for what he did.

I picked up this story from Memeorandum. From there, I see that Captain Ed writes:
[S]hould the punishment for the non-shooter be the same as for the shooter?...[

[W]hat bothers me about the death penalty [is that its] application is inconsistent, and it has the potential for abuse, which this case arguably demonstrates. Even if I supported the death penalty -- which at one point I did -- applying it to a known non-shooter would seem a miscarriage. Texas Governor Rick Perry should think about breaking his streak of non-intervention in this case.
Then there is this sort of overblown commentary, which I find offensive and unhelpful.

UPDATE: Kenneth Foster's life is spared.

138 comments:

Roger said...

As a guy who is in favor of capital punishment, this is the kind of case that makes me reconsideer my position. The guy is a dirt bag and common criminal. But he didnt pull the trigger.

vet66 said...

Fortunately, convenient ignorance of motive, opportunity, and means is no excuse.

"Gee, officer, I was just the driver!" doesn't cut it in Texas. This guy aided and abetted an armed robbery that had the potential for what actually happened: murder.

Once executed he will no longer be allowed to game the system. Capital punishment works and is much cheaper than a lifetime in prison. This person gave up his privilege to walk among us.

Jeremy said...

It would be nice if reporters were actually supposed to report the facts rather than an advocate's position. But yellow journalism has been around for a while--at least as far back as Thomas Jefferson (link is to an 1807 letter where he complains about the poor state of newspapers).

Your last link is yet another example of the drum-beating that replaces intelligent discourse online. YOUR SILENCE ON THIS ISSUE SPEAKS VOLUMES

Kevin said...

I see no problem with this execution. This guy took part knowingly and willfully in an armed robbery, an act which by definition, uses the threat of deadly violence to achieve its end. In this case, as it sometimes does, the threat of deadly violence turned into reality, and an innocent man's life was snuffed out.

The actual shooter was executed last year. I imagine that if the actual shooter was not executed that this execution might be unjust, but this is not the case.

And what kind of fool is Tasha Foster, a "rapper who lives in the Netherlands", who marries a violent felon?

Fritz said...

Mr. Foster was an accomplice to the use of lethal force; case closed. Good law and a true deterrent. If his true intent was not to kill, why did he participate in actions that threatened someone's life to obtain property?

SteveR said...

I agree with your evaluation of the ABC version vs the facts. A much different view of the condemmned man. Yeah probably too harsh but the laws in Texas generally reflect the will of the people and I suspect the majority of Texans support the sentence, pink scrunchy and all.

If you live in Texas and don't realize that, in the course of deciding to commit crime, its hard to feel too sorry for you.

Bender said...

Foster did more than just go along. He did more than aid and abet. It was Foster, as the driver and therefore the one determining where they were going, who targeted this couple and it was therefore Foster who made the decision to rob them. He did more than help -- he was the instigator. Without Foster driving after the couple, the victim would still be alive.

Now, I'm not an advocate of capital punishment either. But it does not help the cause when the MSM (typically) twists the facts to fits its agenda.

Kevin T. Keith said...

There doesn't appear to be any substantive difference between the two accounts, other than whether the victim's friend "approached" the shooter's car or "appeared to flag it down". Both cases state that Brown exited the car alone and acted alone in shooting the victim. The DA does not even attempt to challenge the claims that Brown did not tell the others what he was going to do, or that Foster attempted to object, which are the salient facts regarding Foster's participation in that particular crime. Your claim of "bias" appears to turn entirely on whether the writer unquestioningly accepts the DA's choice of adjectives. I would argue that the actual facts are more relevant - and not even the DA has asserted facts here that make Foster a participant in the crime for which he is going to be killed.

Foster has admitted that he knowingly participated in other crimes, but "felony murder" does not mean you're guilty if a death occurs and you have also committed some other crime; it applies only if a death occurs during a crime in which you are actually a participant. And there's no such crime as a "spree" - individual acts are criminal, but a separate crime committed earlier the same day is not the same as a different crime committed later.

Foster's claim is that the last killing was not planned among the group, that he attempted to distance himself from Brown after it occurred, and that he was prevented from doing so by the others (one of whom had a gun and had just killed another person). The story's a little convenient, but it also appears to be consistent with the evidence and uncontradicted by the prosecution. It is also corroborated by the actual killer, and the others in the car. Apparently the jury decided to kill him because they just made up a story in their own minds that had him as an active participant, in spite of evidence to the contrary and the lack of any evidence in favor. Alternatively, the prosecution abused the felony murder doctrine by treating three independent crimes, hours apart, in different locations, and involving different victims, as the same event. Either way, it doesn't sound like justice.

Bender said...

Foster was not "merely present" and he did not attempt to distance himself from the shooter's actions. It was Foster that took the shooter to the scene, knowing that he had a gun and after having agreed to participate in armed robberies. It was Foster who stopped the car, allowing the shooter to get out. It was Foster who, instead of driving away, allowed the shooter to get back in the car afterward. It was Foster who then encouraged the shooter to get rid of the gun.

Foster was not some remote bystander, he was a direct cause and instigator of the attempted robbery of the victim, which he knew was to be committed with a deadly weapon, and therefore he knew the great possibility of death resulting.

Comrade X said...

Kevin says: it applies only if a death occurs during a crime in which you are actually a participant

play it straight Kevin. he was involved in the robbery that resulted in murder.

Fritz said...

Kevin T. Keith,
You keep making apologies for criminals. Go and coddle the perpetrators. Mr. Foster participated in the use of lethal force as a method to acquire property. In Texas, if someone dies as a result, you are just as guilty as the shooter. Your assertion that there is no evidence is nonsense. You may argue that the law is too strict or unfair, but your legal argument is political not substantive.

Joe said...

When presented in hypothetical, my opinion is split on applying the death sentence in this matter. In reality, I have no problem putting this sub-human slimeball to death. He knowingly and willingly participated in terrorizing people and directly contributed to the death of one.

The article is a sham. It not only implies he was an unwitting dupe, it implies he was still under the influence when the murder happened.

Bissage said...

Here’s a rewrite of Mr. Keith’s 10:26 comment:

Althouse, I’m going to ignore your point about emotional pleas in journalism.

Justice requires that Texas law define “participant” narrowly so as to exclude Mr. Foster, who deserves our pity, but I'm not making an emotional plea or anything.

Juries are evil.

Prosecutors are evil.

George du Maurier said...

White Americans are disgusting and sick. There is only one political group in America. You can play republicans and democrats all you want. You are all the same: reprobate and immoral.

Pretending to pick issues and take stances is a game to you ... being well read ... getting all the information ... making the informed decision.

Atleast our young men who fall victim to America's historic racist based inequality and find crime as their solution have the Hardest Ghetto Black Male Felon Bragging Rights competition where, depending upon the nature of their crime and heritage of victim, they get the accolades and praise they deserve.

"All white people deserve melanomas," Elijah Baal (Yacub 7 Ali) national minister.

vnjagvet said...

Thanks for your input, George. That diatribe will be very persuasive, but not to the part of the audience whose opinions need to change before your goals might be reached.

I am afraid you are preaching to a choir that can't change the song.

George du Maurier said...

I just found out the victim (LaHood) was white (and most likely privileged). I'm submitting Foster's name for the Hardest Ghetto Black Male Felon Bragging Rights.

They support young, black underprivileged felons & death row inmates by writing them letters to let them know that, although their circumstances might not change, they will be positively recognized for their actions.

Members in the Bragging Rights community also sends them commissary money so they can enjoy their prison experiences.

Entering the thug mysticism and becoming the Urban Legend was popularized by Tupac. It's the most respected.

Changing the minds of the choir is pointless. All of you all go to the same church; and none of you can sing.

The only goal is to get Foster some props and positive recognition for being involved in snatching LaHood's life away.

"May you all burn with the melanomas of hell, in the Sun of God Jesus' name we pray, amen" - Yacub 7 Ali

Simon said...

Beldar has a good related post worth reading.

From Inwood said...

Prof A

You are correct in your analysis of what used to be called the "sob sister" school of journalism.

But besides journalists, there is a body of people out there, some on their own, but many with church-sponsored groups or ACLU types (not that there’s anything wrong with that). Seems from talking to some of them & reading what they all say, they've never met a murder, nay a criminal (except Scooter Libby) they didn't sympathize with. And some of these miscreants have now learned to acknowledge their misdeed, are truly sorry, have found God, read Shakespeare & listen to Beethoven, if I can believe their, um, boosters. (You’ve seen “What Not To Wear”? These guys learn fast about “What Not To Say” to the ingenuous people who listen to them.)

And these boosters point out that the death of this miscreant will not bring the vic back to life. (I actually asked one of these good people if she could please refer to the vic in this case by name & describe what the miscreant had actually done to the vic. Ten-Thousand Yard Stare followed.)

And some claim that a particular murder, usually close friend/family type, is not something which would necessarily be repeated. (Noted)

And, some say BushHitler kills people all the time, so there. (Don’t ask me to explain.)

Anyway, I'd go along with banning the death penalty (but only by legislation, not by judicial fiat) if I could be sure that those who are responsible for a murder would go to jail for life without parole. Too often they are freed at some point. To kill again, if something bothers them. And, I understand that the prison authorities would rather not have as inmates, guys who know that they'll never get out: No incentive for them to be a model prisoner. Lots of trouble, morning, noon, & night.

Also, re excuses, excuses, one of those ‘60s crazies, who was caught a few years ago, 25 yrs or so after the murder, used the same lame excuse: “I was only the lookout. I didn’t think that the actual robbers I was looking out for would kill the cop who was guarding the capitalist place they were robbing.” Sorry, but why should I suffer? I didn’t pull the trigger. (Not a death penalty issue in her case.)

BTW, Michael Vick, if one believes the sensationalist news reports, is saying that he wasn’t on his property when dogs were killed.

I for one will have no guilt if this guy is executed.

The Exalted said...

i confess my knowledge of the facts is totally limited to what is here, but:

the guy participated in a felony where someone was murdered?

isn't that textbook felony murder?

i don't see the problem, other than that the public should be better educated as to the concept.

Revenant said...

I have exactly one objection to the death penalty, which is that I don't trust a jury to rightly exonerate all innocent people accused of capital crimes.

If it is true that this guy confessed to participating in the robbery, my objection doesn't apply. So far as I'm concerned robbery is fair grounds for execution.

George du Maurier said...

NOT TEXAS SUPERTHUG LEON DORSEY; and, in our heart of hearts, he embraces how we all feel.

Nope, no Shakespeare here.

Interviewed at the Terrell Unit, about 40 miles east of Huntsville, he said he feels no remorse for the killing and encouraged their families not to dwell on their deaths. He compared it to losing $1,000 in a craps game. "They're dead. That's over and done with," he said. "Why are you going to sit there and worry yourself about that? Move on.

"One of them had to be bumping me or talking . . . [expletive]," he said. "One of them did, or I wouldn't have did it like that. I killed the second person because the first person . . . [expletive] up."

Dorsey, who turns 23 in two months, said he was drunk and high the night of April 4, 1994, when he went to the Blockbuster in search of cash.

Mr. Armstrong or Mr. Lindsey (his [white]victims) probably angered him, but he doesn't remember who or how.

"I could have came in here and been, "Oh, I'm sorry, I'm so bad.' But I don't feel like that. That's not being honest with myself."

He's the real & who I and many others admire.

George du Maurier said...

Leon Dorsey

John Kindley said...

I don't see what is overblown or unhelpful or offensive about the commentary you link to at the end of your post, which to my mind makes some excellent and very helpful points:

Foster's attorney points out that the Texas Board of Pardons and Paroles has only recommended commutation of a death sentence twice in all its years - and the last time, Gov. Perry over-ruled them.

A spokesman for Perry told ABC that Texans overwhelmingly support the death penalty, and that Perry, in his support for it, is "carrying out the will of the people." Yeah, be sure to was your hands, Governor.

My long-time friend Kyle Moore writes.

I’m not arguing that Foster is not a criminal, nor that he is innocent, but the way I understand it, the Death Penalty is reserved for only those most heinous of crimes, for the taking of another life. Foster simply did not do this, everyone knows it, and yet he is likely to be executed despite the facts.

...How is this not cruel and unusual punishment? How is this not overstepping the bounds? How in the hell is this justice? Yes, Foster should be serving a very very long term in prison, but where is the sense in killing this man? I just don’t get it. I don’t get how we as Americans stand for this?

Some will say Kyle would feel differently if it had been his close friend, his family memebr, who was murdered.

Maybe. maybe not. Sean Paul Kelly at the Agonist was one of the murdered man's two closest friends. Here's what he has to say:

You see, one night in August 1996 one of my best friends, Michael LaHood, was murdered by Mauriceo Brown. And Kenneth Foster, Jr. was driving for Mauriceo that night. I don't know what the circumstances of Kenneth's involvement were beyond the fact that he was still in the car when Mauriceo pulled the trigger that sent a bullet through my friends brain, ending his life immediately.

Was he being forced to drive? Or was he along for the ride? I don't care. Kenneth deserves and is receiving punishment for his role in the tragedy that occurred that night. But whatever punishment Kenneth does deserve for his role in my friends cruel murder, execution should not ever have been (or be) an option. He did not pull the trigger, or encourage Mr. Brown to pull it in any way, nor was he even aware that the murder was being contemplated or had been committed until after the fact. His punishment should not be execution.

...I still remember eating chicken fried steak with him and D-Day--the third and most successful leg of our triumviral friendship--at Maggies at 3:00am after clubbing, back when the three of us attended the local junior college, were obsessed with the opposite sex but too stupid to realize they were just as obsessed with us as we were with them. God how I'd give anything to have him back. Thinking of him brings a tear to my eyes even now. What makes it worse is that I'd returned from living out of the country a few months before he was killed. A new career kept me busy. We kept postponing getting together. My last words to Mike--two weeks before he was murdered--were a cliché for all clichés: "we'll do it next weekend, buddy, we've got all the time in the world." I couldn't hear the clock ticking. I wish I'd listened closer.

And for that I hated Mauriceo and his gang even more, and for a long time. But the execution of a young man who didn't even kill Mike? That's not justice. It's senseless vengeance, a barbarism cloaked in the black robes of justice.

...Kenneth did not ask for my help; he's already accepted his fate. Someone he helped asked me to help him. I cannot live with myself if I don't try.

Pogo said...

A guy who brings a gun or knife to a robbery expects it to be used or he wouldn't bring it. He hopes against the need for force, but he's more than willing to use it, fearfully or not.

A man who is a repeat offender in armed robbery knows what's going on. He knows, just like a cop knows, that this time might be the time someone dies. If you rob people at gunpoint long enough, odds are you'll shoot someone at some point.

It's semantic bullshit for the driver to disclaim responsibility here. They were a criminal enterprise. He just drew the "driver" straw this time. But he was an important part in a machine whose side effect is the occasional death.

Stalin and Mao could similarly defend themselves as just being drivers, having never actually pulled the triggers on 80 million dead.

How hard is it eaxactly not to hang around people who rob at gunpoint? How hard is it not to go on robberies with them? How hard is it not to drive them to a robbery, and drive the shooter away from it when it goes bad?

Most people cna go a lifetime never even contemplating these acts. Foster needs to understand what joint and several liability means when gangs do crimes.

Comrade X said...

by Kevin T Keith and John Kindley's own logic, Texas isn't executing this guy, the potassium chloride is.

Revenant said...

the way I understand it, the Death Penalty is reserved for only those most heinous of crimes, for the taking of another life.

The way you understand it is incorrect, obviously.

How is this not cruel and unusual punishment?

Besides the fact that there's nothing cruel or unusual about it? Hm, let's see...

David53 said...

White Americans are disgusting and sick.

I'm trying to get well but it's hard. The drugs they give me just don't seem to be very effective. Maybe when I'm no longer sick I'll be less disgusting.

Is Tiger Woods white?

Nels said...

Isn't it implicit in pointing a gun at someone that if they don't comply with your demands you will shoot them? I might have more sympathy for the driver if this had been the first robbery of the night, but by the time they got to LaHood it would have been clear what could happen.

I'm conflicted about the death penalty, and don't know if this particular guy deserves it, but it's obvious this isn't simply a case of some poor kid who smoked a little dope and ended up in the wrong place at the wrong time.

George du Maurier said...

David53 said...

I'm trying to get well but it's hard. The drugs they give me just don't seem to be very effective. Maybe when I'm no longer sick I'll be less disgusting.



Whites can't get well. There is no medicine or philosopy that can heal you.

Ultraviolet light is reserved for you, though; and, may heal the earth of the white disease.

John Kindley said...

Everyone cited in the commentary that Ann posted to but called overblown, offensive and unhelpful agreed that this guy is gravely culpable and should serve a long time in prison. But armed robbery and homicide committed in the course of a robbery are different offenses carrying different penalties. The fact that someone could be killed in the course of the armed robbery (as well as the terror and threat involved), even if you don't intend to kill anyone, is already built into the penalty for armed robbery, so that quite rightly, the penalty for armed robbery is greater than for burglary. If you as an individual decide to hold up a convenience store, and then in the course of that robbery make the further decision to pull the trigger and kill the clerk, rather than deciding to give up and run away, you should of course be tried for murder. But in this case, Foster himself did not take that further step. I'm aware that the felony murder statutes impute the same intent to him as to his confederates in the criminal enterprise, but I think this is psychologically unjustifiable. What would perhaps be more appropriate is to make group action in the course of any armed robbery an aggravating factor (because of the far greater risk that someone you're acting with will decide to pull the trigger) for all armed robberies, or to make it a separate, greater offense.

Pogo said...

Re: "I think this is psychologically unjustifiable."

I don't follow. What does 'psychologically' mean when used here?

If imprisonoment without parole actually meant imprisonment without parole, we wouldn't be having this discussion, and I'd be happy to let him decay behind bars. But it doesn't mean that.

Because prisoners don't reliably serve the time prescribed, the only true certainty in punishment becomes death, and for people like this, true certainty is required. Men like this are not fit to be around civilized people and must be kept away for our safety. No other factor matters.

Fix the problem of inadequate prison terms, and the call for the death penalty might lessen.

J said...

"Texas Governor Rick Perry should think about breaking his streak of non-intervention in this case"

As a point of trivia, the governor of Texas does not have the authority to stop an execution, though he/she can grant a single 30 day stay.

John Kindley said...

"I don't follow. What does 'psychologically' mean when used here?"

Meaning, it takes a cold-blooded killer to actually pull the trigger (in this case, at point-blank range in the face) and kill someone for money, but it takes something less than that to drive one's friends around while they commit armed robberies. Certainly, it takes a criminal mind or mindlessness to do the latter, and severe punishment is warranted, but criminal law generally distinguishes between degrees of culpability and maliciousness, and the behavior of Foster is consistent with that of a weak-minded follower. I don't think we know enough to know whether Foster was a weak-minded chauffeur or a more active participant, but even if it was the latter, his crime was aiding and abetting armed robbery. I support the death penalty for murderers, absent mitigating factors, but am not satisfied that Foster had the state of mind that would call for this ultimate penalty.

Simon said...

John Kindley said...
"...How is this not cruel and unusual punishment?"

What's the argument that it is?

It certainly isn't violative of the original understanding, but even if you reject that, under the announced test for the living documentarian approach, the amendment's content is drawn from "the evolving standards of decency that mark the progress of a maturing society, Trop v. Dulles, 356 U.S. 86, 100—101 (1958). The death penalty is not per se unconstitutional, so you would have to argue that it's is proportionate for the particular crime; to prevail, you need Justice Kennedy's vote.

So how do you get Kennedy? In Harmelin, Justice Scalia and the Chief Justice argued that the Eighth Amendment contains no proportionality guarantee, but Justice Kennedy - joined by Justices O'Connor and Souter - rejected that position, accepting a narrow proportionality requirement in both capital and non-capital sentences. Harmelin v. Michigan, 501 U.S. 957, 997 (1991) (Kennedy, J., concurring in the judgment). In Roper, Kennedy reaffirmed his view that "the Eighth Amendment guarantees individuals the right not to be subjected to excessive sanctions," and concluded that "the death penalty is disproportionate punishment for offenders under 18"; Roper v. Simmons, 543 U.S. 551 (2005) (slip op. at 6, 21). adverting to the Trop test, Kennedy set out his criteria: "The beginning point is a review of objective indicia of consensus, as expressed in particular by the enactments of legislatures that have addressed the question...." Roper, slip op. at 10. In that case, Kennedy concluded that "the objective indicia of consensus ... – the rejection of the juvenile death penalty in the majority of States; the infrequency of its use even where it remains on the books; and the consistency in the trend toward abolition of the practice–provide sufficient evidence that today our society views juveniles, in the words Atkins used respecting the mentally retarded, as 'categorically less culpable than the average criminal.'" Id. at 13 (quoting Atkins v. Virginia, 536 U.S. 304, 316). So objective indicia is one part of Kennedy's Roper assesment; the other part (and one suspects the dominant part) is that the court "must determine, in the exercise of [its] own independent judgment, whether the death penalty is a disproportionate punishment for juveniles."

So if those are Kennedy's criteria, John, what's your pitch to him?

Pogo said...

Re: " it takes a cold-blooded killer to actually pull the trigger ...and kill someone for money, but ...."


I disagree. It takes a good degree of depravity, a cold-bloodedness, to wait in a car while your friend goes in to rob and kill someone. (I have never ever met someone who could do this, except in prison.)

His crime was aiding and abetting a murder. Joint liability.

The Exalted said...

ha, pogo wants the death penalty for all armed robbers

how droll

needless to say, felony murder was certainly controversial topic back in crim class

Pogo said...

Wrong. Only those armed robbers (and their assistants) who kill.

Your reading was a deliberate and dishonest misrepresentation.

Revenant said...

But in this case, Foster himself did not take that further step. I'm aware that the felony murder statutes impute the same intent to him as to his confederates in the criminal enterprise, but I think this is psychologically unjustifiable.

We'll let you know when the law starts being based on what you find "psychologically justifiable".

It has been the law -- since long before this waste of sperm was born -- that murders committed in the course of a robbery get pinned on everyone involved. Anyone who signs on for armed robbery is taking a risk of a capital murder conviction. If you can't handle the chance of ending up on death row, stay out of the gang robbery business. You don't get to help rob people at gunpoint and then complain, when your friend blows some innocent guy's head off, that you didn't really mean for anyone to get hurt. That's bullshit, plain and simple.

Revenant said...

ha, pogo wants the death penalty for all armed robbers. how droll

Like Pogo said, he doesn't want that. But why would it be bad if he did?

An armed robber has stated his willingness to kill you if you do not allow him to rob you. What's wrong with ridding the human race of anyone and everyone who thinks that way?

John Kindley said...

"So if those are Kennedy's criteria, John, what's your pitch to him?"

It would be along the lines of following comments in the commentary that Ann linked to. I would further simply say that when it comes to the criminal law, punishment must be proportionate to intent, and that the death penalty is cruel or unusual when it punishes the accused for the acts intended by another actor rather than for the accused's own intent.

"These are extraordinarily severe consequences about what was at best, a guess about what was in [Foster's] mind when these things happened," Robert C. Owen, a law professor at the University of Texas-Austin law school said.

"This is a type of case that rarely, if ever, ends up with a death sentence imposed," said John H. Blume, a law professor, and director of Cornell University's Death Penalty Project. "I am willing to bet you there are hundreds of people in prison doing life or substantially less time, who, what they did is as bad if not worse than what Foster did."

Pogo said...

"I am willing to bet you there are hundreds of people in prison doing life or substantially less time..."

Then their sentences were erroneous.

John Kindley said...

Pogo said: "Wrong. Only those armed robbers (and their assistants) who kill.
Your reading was a deliberate and dishonest misrepresentation."

Not so sure about this. Consider your original statement: "It takes a good degree of depravity, a cold-bloodedness, to wait in a car while your friend goes in to rob and kill someone."

Doesn't it take the very same degree of depravity (assuming in the former scenario you don't know that your friend intends to kill the victim) "to wait in a car while your friend goes in to rob [but not kill] someone"?

If it does, then according to your reasoning both should merit the death penalty. If you want to say that the driver is responsible for knowing or not knowing the homicidal propensities or actual intentions of his friend, that only goes so far. I would think that such knowledge would be relevant evidence concerning the intent of the driver, whose own intent rather than that of the shooter, should be the determining factor in the driver's trial. Problems of proof likely motivated the enactment of the felony murder statutes, but particularly in the case of the death penalty, the burden of proof beyond a reasonable doubt needs to be on the prosecution.

Revenant said...

the death penalty is cruel or unusual when it punishes the accused for the acts intended by another actor rather than for the accused's own intent

The law has punished accomplices for crimes they did not personally commit for thousands of years. That alone proves there's nothing unusual about doing so.

As for cruelty -- how is it cruel? The guy chose to participate in a group armed robbery. He's paying the price for having done so. Had he not followed the couple home in his car, they would still be alive. Had he turned around and driven his buddies home, they would still be alive. Instead he drove up to their house so that his friend could get out and put a loaded gun to somebody's head.

And you think it is "cruel" to hold him accountable for what that gun was used for? How, exactly, is it cruel?

Troy said...

I lived in Texas for over 30 years. Bottom line: If one decides to joyride around with a gun and rob people putting lives at risk one will usually get what one deserves from a Texas jury. Foster is just as responsible for LaHood's death. Brown never would've been there with that idiot's chauffeur services. Now Foster wants out? TX party statute is pretty clear.

It is harsh -- who says "harsh" is a bad thing when it comes to felony murder -- a guy's life for a friggin' car and some change? At least Foster is losing his life in exchange for the one he helped take.

cyrus pinkerton said...

Fritz wrote:

Good law and a true deterrent.

If it's a true deterrent, why wan't it a deterrent?

Do you have evidence that shows that capital punishment is an effective deterrent?

Simon Kenton said...

Pogo, it isn't just that prisons are porous, and sentences get commuted or set aside. You will see very little publicity about it, but substituting prison for a death sentence often means death for others. We tend to think of prisons as a bunch of cells full of hapless thugs who get out an hour a day, but in fact their staff is only a fraction of the number of inmates, and the work of the inmates is required to keep the institution going. Within the walls all but the most heinous inmates are loose all the time. So, motivated by lust, vengeance, or the pursuit of status, those inmates who are savage or who are under a gang's protection enjoy open season on one another, and nearly open season on guards. Many will have a protracted death by AIDS, many more by shank or strangulation. When they kill, they receive another trial and get another life sentence stacked on the others, are returned to the slammer, and kill again at will. I know of one inmate who announced he will kill anyone in his presence whose hands are raised above their waist, and has done so several times. Unlike most inmates who just want to get through their time, these are at high risk not just for ordinary prison murders, but for the most violent prison break attempts, at ages when most prisoners have calmed along with their abating testosterone.

It seems to me that the people who are against the death penalty must be arguing that there's a social principle that society imposing death directly is so immoral that all these other deaths, which are as predictable as highway deaths from bad engineering, are worth it. More pacific prisoners and guards dying are worth it to keep our hands clean.

I don't see it.

George du Maurier said...

I've submitted Foster to see if he can qualify and earn some Bragging Rights for LaHood's slaying.

It's sad Foster's scared to die and has been made to lie about how he really feels about Lahood's slaying.

I think that's why so many blacks champion young thugs like his fellow Texas Death Row inmate, Leon Dorsey.

The outcome of these young men's lives is society's fault.

When the privilege and victim is right, it's better a young, black male who may be headed to the penitentiary or death row anyway go with the big notches like LaHood, Jennifer Ross (who valued her purse over her life AND whose heirs were slave owners) and Channon Christian (who wanted the Death by Sexual Torture by blacks) under their belts than for some petty, black-on-black crimes.

While we support them when they apologize, we exalt them when they have the courage to, for a handful of crummy money, take your loved ones lives, curse their judges during trial and spit in your faces from the penitentiary or on death row.

Pigs are meant to be slayed.

Our young men enter the Kingdom of Heaven with recognition and glory for slaying pigs and sending their greedy, selfish and perverted flesh back to the dust from whence it came.

The same is Why the Sun of God & the Son of God (they are the same) Hates Whyte People and burns them with squamous and basal cell carcinomas and melanomas

Blessed is the Sun of God and his Prophet Yacub 7 Ali

J said...

"Do you have evidence that shows that capital punishment is an effective deterrent?"

I have to confess that I don't have the actual numbers here in front of me, but I'm told - by people I trust - that the recidivism rate for criminals who've been executed is very, very low.

The Drill SGT said...

It has been the law -- since long before this waste of sperm was born -- that murders committed in the course of a robbery get pinned on everyone involved.

To expand on Revenant's statement,

In most states, a death that occurs in the commission of a crime is murder. regardless of who pulls the trigger. Meaning, if you are an accomplice at the scene and somebody dies in an armed robbery, you get charged with murder. In fact in many places, if you participate in a robbery and somebody gets hit in the getaway, its murder or in fact, if a cop shoots at you and kills somebody, in some places the robber is guilty of murder, not the cop, because the shootout was a forseeable result of the underlying felony.

one can be against the death penalty, but still agree with the underlying criminal code.

George du Maurier said...

So is the reincartion rate of the pigs they slaughtered.

George du Maurier said...

J said...

"Do you have evidence that shows that capital punishment is an effective deterrent?"

I have to confess that I don't have the actual numbers here in front of me, but I'm told - by people I trust - that the recidivism rate for criminals who've been executed is very, very low.

George du Maurier said...

So is the reincartion rate of the pigs they slaughtered.

7:07 PM

class-factotum said...

"Do you have evidence that shows that capital punishment is an effective deterrent?"

If Kenneth Allen McDuff had been put to death as originally sentenced in the late 60s instead of having his sentence commuted to life and then getting parole in the late 80s, Colleen Reed, whom he murdered when he was released, would be alive today.

So yes, the death penalty can deter future crimes by the same criminal.

John Kindley said...

"And you think it is "cruel" to hold him accountable for what that gun was used for? How, exactly, is it cruel?"

He should be held accountable for what he himself did, but I think the death penalty is disproportionate to the crime, relative to the penalties attached to other crimes. Suppose the worst case scenario, which was not at all evident from the facts as described in the article and the court opinion, that Foster knew that Brown was a psychopath and was likely to kill anyone who refused his demand for money. Most people when confronted with a loaded gun will hand the money over, so even in this high risk scenario the likelihood of someone being killed is far from certain. What is Foster's behavior then comparable to? First-degree reckless homicide is the reckless causing of the death of another human being under circumstances which show an utter disregard for human life, and in Wisconsin is a Class B felony, not a capital offense. Brown, on the other hand, committed first-degree intentional homicide.

The felony murder statute can create all sorts of aberrations, resulting from its taking the focus off the intent of the accused. E.g. If I interpret it correctly, if you and an accomplice are committing an unarmed burglary in a house you think is unoccupied and the owner surprises you and shoots your accomplice dead, you could be charged with felony murder for his death.

With regard to the problems Simon Kenton cites, this could be relieved by repealing many of the laws that make criminals out of non-violent offenders and by putting simple thieves and other non-violent offenders in seperate facilities from violent criminals. Indeed, that is certainly cruel and unusual punishment, or our evolving sense of decency should make it so, to put a non-violent drug user or a tax evader in a cage with a bunch of violent criminals.

Simon said...
This comment has been removed by the author.
Simon said...

John Kindley said...
"[If those are Kennedy's criteria, my pitch to him] would be along the lines of following comments in the commentary that Ann linked to. I would further simply say that when it comes to the criminal law, punishment must be proportionate to intent, and that the death penalty is cruel or unusual when it punishes the accused for the acts intended by another actor rather than for the accused's own intent."

Do you think that's an argument that's likely to prevail? Do you relly believe that it's unconstitutional, or would you argue that because it's a bad thing (at least as you see it), that makes it unconstitutional? Why take the matter to the Constitutional plane - why not simply abolish it legislatively if you don't agree with it?

From Inwood said...

John K

You are awfully forgiving of accomplices to an armed robbery who say "Well, I never thought my friend (the principal offender, ya see) would use the gun. Why did he have it? I dunno."

This was a staple of Pre WW II gangster movies, the innocent who just went along for the ride, the thrill of it all, & never thought the gun was loaded, much less that the guy would use it.

Then, you quote the director of Cornell's Never No Death Penalty No How, Nowhere organization as saying that:

"[He is]willing to bet you there are hundreds of people in prison doing life or substantially less time, who, what they did is as bad if not worse than what Foster did."

Conceded.

But I am willing to bet you “there are hundreds of people in prison doing life or substantially less time, who, what they did is as bad if not worse than what the actual murderer did.”

I am also willing to bet you that some people get away with murder altogether & play golf & write "If" books about it.

I am also willing to bet you that some people who go thru an amber traffic light & talk the cop out of giving them a ticket whereas I got one, damn.

You want to substitute your judgment for that of a TX judge & jury.

BTW, the NY Daily News, no longer a conservative paper, had an article a few years ago describing how it was virtually impossible to get a conviction of a Black defendant in Bronx County. Should we also factor this in to TX juries' deliberations?

You also say that

"...it takes a cold-blooded killer to actually pull the trigger (in this case, at point-blank range in the face) and kill someone for money, but it takes something less than that to drive one's friends around while they commit armed robberies."

I suggest to you that it was clear to state legislatures which enacted a felony murder law that it also takes a cold-blooded person to drive one's friends around while they commit armed robberies.

But, unlike them & me, you are nuanced. Even so, it never occurred to you that, unless the driver or the lookout are of such low intelligence that they should not be considered capable of being able to reason about such things, such accomplices have to be aware that the guy with the gun has the gun for a reason? And that reason would be one that they might later have to pay for?

And yet you are in an exculpatory mood, or an extenuating one. As Orwell said (paraphrase): one would have to be incredibly intelligent to have come up with an idea so incredibly stupid. Or your position is affected, in which case you are intellectually dishonest.

John Kindley said...

"Do you think that's an argument that's likely to prevail? Do you relly believe that it's unconstitutional, or would you argue that because it's a bad thing (at least as you see it), that makes it unconstitutional?"

Ha Ha! Not really Simon (to the first two questions). In my original comment, only the introductory sentence was mine. The rest was copied from the commentary that Ann linked to, and someone in there expressed the opinion that the death penalty in this circumstance constituted cruel and unusual punishment. I wasn't really thinking in terms of the Constitution but in terms of what seems right, but rose (half-heartedly) anyway to the challenge of your question!

Revenant said...

If it's a true deterrent, why wan't it a deterrent?

A deterrent is "something which discourages or restrains something from acting or proceeding". E.g., bars and guardrails deter people from climbing into the animals' pens at the zoo. Despite that, several times a year some nimrod manages to climb in anyway and gets made into kibble by a polar bear, because the bars *discourage* the activity. They do not make it impossible.

Do you have evidence that shows that capital punishment is an effective deterrent?

It certainly deters the person being punished!

As for wider-scale deterrence, it is impossible to say for certain whether the death penalty deters crime or not. You would need to take two populations with identical crime rates, introduce the death penalty in one of the two, and hold the other variables relatively constant for a prolonged period. Outside of a totalitarian society I can't think of how you'd pull that one off.

As a matter of economics, increasing the cost of something will always result in rational actors choosing it less. Raising the penalty for murder should, therefore, discourage people who would otherwise have rationally chosen to commit murder from doing so. This applies to all crimes, of course. Drop the rape penalty to a $25 dollar fine and no woman will ever be safe again; raise the penalty for jaywalking to 30 years in prison and people will start paying very, very close attention to the traffic signals.

Where murder is concerned, two problems arise:

(1): Many murders are committed for irrational reasons.
(2): The segment of society responsible for the overwhelming majority of crime consists of people, mostly men, who are stupid, uneducated, and possessed of poor long-term planning skills.

Raising the cost of murder does nothing to stop people who are murdering for crazy reasons (e.g., you walk home, see your wife porking some guy, and immediately kill them in a fit of rage), and does little to deter people who are simply too stupid to follow the train of thought that says "if I kill this guy, I might get executed for it, so I won't kill him".

The minority of murders which are committed for rational-but-evil reasons (e.g., bumping off your wife to collect the insurance) should feel a deterrent effect. Of course, the death penalty is so rarely used and so sporadically enforced that it doesn't represent a significant cost increase over "life in prison" and therefore probably doesn't discourage many people.

So (to sum up) I doubt there's any significant deterrent effect to the death penalty as it currently exists. If we made it more common (e.g., make it automatic for any first-degree murder and any murder committed during the commission of another crime) we would see a deterrent effect, because that would represent a significant increase over the current "cost" of those crimes.

Revenant said...

Suppose the worst case scenario, which was not at all evident from the facts as described in the article and the court opinion, that Foster knew that Brown was a psychopath and was likely to kill anyone who refused his demand for money. Most people when confronted with a loaded gun will hand the money over, so even in this high risk scenario the likelihood of someone being killed is far from certain.

If I get a .44 Magnum, go up in a tower, and start shooting at the people below me I can't evade a murder rap by saying "but your honor, my aim sucks and I was really far away -- odds were nobody was going to get hit!". Even if my excuse was completely sincere, and I was a big enough dumbass to think that firing a loaded gun at a distant crowd would probably be safe, it would STILL not be "cruel" to call me a murderer in the event that one of those bullets found a home in someone's skull.

Foster decided to help his friend go out threaten people at gunpoint. Maybe he figured "gosh, odds were nobody will *actually* get killed -- but you'd have to be completely insane, in my opinion, to think it "cruel" to hold him accountable if that guess turns out to be wrong.

John Kindley said...

"You want to substitute your judgment for that of a TX judge & jury."

Actually, a big part of my problem with the felony murder statute is that it takes a lot of discretion out of the hands of the jury. Foster intended to aid and abet armed robbery. Brown committed murder in the course of that armed robbery. Ergo, case closed, directed verdict, Foster is guilty of murder and the death penalty is on the table (I'm not sure whether the imposition of the death sentence was up to the judge or the jury). I would prefer that the jury be allowed to take into account Foster's actual intent with regard to the murder.

Unlike other topics I've debated on this blog, I'm not completely confident in the side I've chosen to advance. My initial comment merely questioned Ann's characterization of the linked commentary as overblown, offensive and unhelpful. Armed robbery is obviously an extremely serious offense. If a man says "your money or your life" while holding a loaded gun, it's not unreasonable to presume that he means what he says and that he would have killed you if you hadn't handed over your wallet. Therefore, if we're going to punish people based on their intent, as I've supported, then Revenant's argument that imposing the death penalty for armed robbery is reasonable is not beyond the pale.

We can imagine a set of circumstances within the framework of the facts of this case as described in which Foster is highly culpable, but we can also imagine another set of circumstances within the same described facts in which he is less culpable. Ultimately, it should up to the jury to judge these facts and circumstances, but they shouldn't be hampered by the felony murder statute and the focus of their discernment should be the actual intent of the accused.

The Drill SGT said...

Actually, a big part of my problem with the felony murder statute is that it takes a lot of discretion out of the hands of the jury.

My understanding of the felony murder laws is that one of the principal reasons for their creation is to prevent juries from being faced with the following situation and to prevent dirt bag defense counsels from using it.

let's invent this fact base:
1. Foster and Brown (only the 2 of them) decide to go commit armed robbery. Other evidence proves that the murder was done with the gun and both the defendants and no others were with the victim at the time of the killing.
2. The state has NO felony murder statue
3. They meet LaHood on a dark street and one of them kills him
4. at their joint trial Brown testifies that Foster pulled the trigger and Foster says Brown did it. The jury has reasonable doubts about each man pulling the trigger and can't convict either of murder 1. or they flip a coin and pick the least appealing defendant for the death penalty?
5. Alternately, they are tried separately and both get off on murder because there isn't proof beyond a reasonable doubt that the one on trial in each case was the actual shooter.

The felony murder law was designed to AVOID finger pointing game playing by defense lawyers and remove the doubt issue from juries. commit a felony were a death occurs and all the defendants are guilty of murder. bright line law. understandable by your average felon

tjl said...

"I'm not sure whether the imposition of the death sentence was up to the judge or the jury"

It's the jury. After a Texas jury convicts a defendant of capital murder, the jury will hear evidence as to punishment from the prosecution and defense. To impose a death sentence, the jury must unanimously make findings of future dangerousness and insufficient mitigation.

While Texas juries are not shy about imposing the death penalty, they don't do so as automatically as John Kindley suggests above.

Revenant said...

While Texas juries are not shy about imposing the death penalty, they don't do so as automatically as John Kindley suggests above.

Yep.

According to Wikipedia, Texas executed 354 people between 1982 and 2005. There were 39,899 murders in Texas during the same period of time. So something on the order of 1% of murderers get executed (which, as I noted above, is one of the reasons we shouldn't expect much of a deterrent effect).

jeff said...

"The felony murder statute can create all sorts of aberrations, resulting from its taking the focus off the intent of the accused. E.g. If I interpret it correctly, if you and an accomplice are committing an unarmed burglary in a house you think is unoccupied and the owner surprises you and shoots your accomplice dead, you could be charged with felony murder for his death."
Yes. In some states. Assuming the state can prove the unarmed burglary achieves felony status. The two criminals set things in motion that could reasonably be expected to end in someone's death.

In this case, we dont even know if the guy that pulled the trigger had intent to kill. He may have just put his finger on the trigger, and in the process of shoving the gun in his victims face, pulled it and killed him. Does it matter? Not really, they put things in motion that could reasonable be expected to end in someone's death or serious injury. Such is the chance you take participating in armed robbery.

John Kindley said...

To clarify further where I am not committed to the argument I've been making: As the drill sgt said above, "One can be against the death penalty, but still agree with the underlying criminal code." I recognize the logic of the felony murder statutes, and that one of the reasons for enacting them was to avoid problems of proof. There is a sense in which Foster can be said to have intended the foreseeable and natural consequences of the criminal enterprise in which he participated. I think there is a real problem with this, however, because in this case Foster's intent or mens rea was in the nature of that associated with criminally reckless homicide, but he is being punished as if he had intentionally and purposefully killed someone. Similarly culpable defendants are therefore being punished differently. Also, I think society is right to be very circumspect about the death penalty in particular, and therefore to apply it only in cases of unmitigated intentional homicide where guilt has been proved beyond the shadow of a doubt. It's one thing to make a man responsible for a homicide that he did not personally intend but that occurred in the course of a criminal enterprise that he did intend; it's another to then impute to him the actual personal intention to commit the murder and/or to impose the penalty which normally is reserved and should be reserved only for such intentional homicides.

From Inwood said...

Drill Sgt.

I’m in an area beyond my expertise. And I’m not gonna research the origins of this law, so let me just note that, in this case, your reason for the origin of the law (confusion of a jury) would not be apt. No one would think that the driver did it here as opposed to the situation where two guys do the robbery, each with a gun.

John K

Again, someone who is a criminal lawyer should comment, but I don’t know that all jurisdictions would charge a lookout or driver with felony murder if that’s all they did.

But apparently Texas does. So you say

“Actually, a big part of [your] problem with the felony murder statute is that it takes a lot of discretion out of the hands of the jury. Foster intended to aid and abet armed robbery.”

Actually your last sentence would be a determination of a jury. Again beyond my expertise, but if I remember Crim Law 101, the jury must determine something, I suspect, like whether Foster was there willingly & was assisting the perp while sharing in the requisite intent of armed robbery. And it must decide whether the vic died of the wound, I’d guess. That is, like any murder trial, it must decide what the facts are, ma’m.

Also, if I remember my Crim law exam, some armed robbery vic trips & falls & hits his head, fatally. Was this felony murder? Perhaps some specialist can answer.

So, while you are against the death penalty in general, you think it is worse to have given the death penalty to this driver.

OK. Reasonable people can differ as to whether that is too harsh for the driver (see Capt Ed’s comment), & can differ as to whether there should be a death penalty in the first place. But I repeat that, if you or anyone else feels with regard to the driver that the judge & jury was a good ol’ Texas cowboy-hang ‘em judge & jury, verdict first then the facts, & that this was really like the ol’ Pre WW II gangster movie: the innocent who just went along for the ride, the thrill of it all & never thought the gun was loaded, much less that the killer would use it, then I repeat my reference to Orwell’s point about only incredibly intelligent people having the ability to come up with a belief so incredibly, let’s say, naive.

I will sleep without guilt if & when this guy dies.

Tjl

As I was posting the above, I saw your 8:59. Can the trial judge overrule the jury’s death verdict?

Certainly appellate courts feel that they can (a)on the theory that no reasonable trier of facts would’ve come to this verdict or (b) on their determination that the death penalty is unconstitutional under their reading of the state and/or US Constitutions.

From Inwood said...

John K

Your 10:18

Please. You say that

“it's another to then impute to him the actual personal intention to commit the murder and/or to impose the penalty which normally is reserved and should be reserved only for such intentional homicides.”

When you say that, you’re missing the point of a felony murder statue, the concept of felony murder: it doesn’t have to be an intentional killing by the killer. That’s the point of the law. It’s to stop armed robbery where there’s a killing without having a jury wrestle with whether the killing was intentional, pre-meditated, with aforethought, whether it was manslaughter, whatever. No philosophical discussions; no figuring why the trigger was pulled, no worry about ricochet or accidental trigger pulling.

dick said...

I keep thinking of the do-gooders and their take on people who do things like this. When I lived in NJ there was a case where a bunch of joy riding kids decided to rob somebody. They followed a 70 year old woman around while she drove her friends to do their shopping and then dropped them off at home. They then followed her into her driveway after dark. They got out and pulled a gun on her. She screamed; they shot; she was wounded, luckily not killed. Their lawyer blamed her for the shooting because if she had not screamed they would not have shot. What if she had died as a result of the shooting or the fear of being attacked at her age?

The do-gooders supported the lawyer in this case and came out in droves to support the young men who did this to the old woman. A small difference in the outcome and this would have been the same situation as the Texas one. Should the boys be held responsible for what they did or should they be told to behave themselves in the future. The do-gooders say behave themselves in the future. I think they should be nailed now.

Beth said...

Because I oppose the death penalty, I'm not wanting this guy to die. But the principle is right that holds him responsible for this death.

When a person pulls a gun to use as leverage in making someone else comply with his wishes, whatever they may be, he has accepted the possibility that he might end up killing. The situation can spin out of control, the gunman might just be inexperienced with a weapon, any number of things can cause a shooting to happen. And if a group goes out robbing and bullying, with one of them armed, they've all signed on for the possibility that someone could die. It's absolutely fair that they all share responsibilty for what happened. Too bad for this guy that the other two made a deal before he could. That's just another consequence he could have given thought to before he went out robbing people with his scummy friends.

The Drill SGT said...

When you say that, you’re missing the point of a felony murder statue, the concept of felony murder: it doesn’t have to be an intentional killing by the killer. That’s the point of the law. It’s to stop armed robbery where there’s a killing without having a jury wrestle with whether the killing was intentional, pre-meditated, with aforethought, whether it was manslaughter, whatever. No philosophical discussions; no figuring why the trigger was pulled, no worry about ricochet or accidental trigger pulling.

Inwood, I fail to see where we disagree. My point was similar to yours. The felony murder law removes a lot of ambiguity from the proceedings. 1. was there a felony (actually it's normally a list of things like murder, armed robbery, kidnap, rape, or in some states a class of violent felony specified elsewhere) ? 2. did these guys participate? 3. did a death occur in the course of the felony incident? Guilty! next case.

The Drill SGT said...

Beth,

I love you!

yes, we may disagree on the death penalty, but I like your general law and order approach :)

a conservative is a liberal who has been mugged?

dare I say you are half way to being a conservative. just kidding :)

a reasonable liberal.

Today's American Hypocrites said...

at the end of the day, you all go to the same church and none of you can sing.

i told you -

John Kindley said...

"So, while you are against the death penalty in general, you think it is worse to have given the death penalty to this driver."

I'm not against the death penalty in general. I just think it should be applied evenly and only to the truly deserving. This has usually been considered by modern society to consist of those who commit intentional homicide without sufficient mitigation, and more particularly of those who do so with aggravating factors.

"When you say that, you’re missing the point of a felony murder statue, the concept of felony murder: it doesn’t have to be an intentional killing by the killer."

And that's why it's an unjustly uneven application of the law to attach to unintentional felony murder the penalties normally associated with intentional murder, when the actual mens rea is more in the line of criminally reckless homicide, to which the death penalty does not attach. To avoid claims of accidental trigger pulls, you can simply operate on the commensense rebuttable presumption that someone who pulls the trigger in the course of an armed robbery intends to kill his victim. That presumption doesn't apply to someone who was outside in the car when the bullets started flying.

I understand that felony murder doesn't have to be an intentional killing by the killer. That's what this case is all about. Technically I suppose I misspoke when I said that the felony murder statutes impute the actual personal intention to commit the murder, when what I meant is that, at least in Texas in this case, they impute the penalties traditionally reserved for intentional homicide.

Cedarford said...

Joint liability goes back thousands of years and is present in most culture's legal systems today. The reasons make too much sense to end using it, despite Kindley and Captain Ed's protestation that members of a group crime shoulod only be responsible for their actual individual acts in the crime.

1. Besides murder, involvement in other crimes naturally have people that seek to minimize their role - "I didn't rape the girl, I only held her down while others did! I didn't slit her throat - some other guy did! The body was in my backyard, but I only watched as the actual rapists buried her!!"

And their defenders, who wish to fractionate all crimes down to guilt dilution based on only the contribution of crime of individual acts, not the collective sum of harm that the group did to society and individuals.

Such an aproach may be nice in lawsuits as lawyers quibble about contributory damages, but not in crimes that are predicated from the beginning in having adequate numbers of criminal contributors to pull it off in the 1st place.

2. Joint liability is a deterrent to many from joining in a conspiracy to committ a crime. The argument that while it deters some, that certain thugs are too stupid to look ahead and weigh their personal risk if a group home invasion results in rape and murder is specious. It is just too bad for the stupid thugs.

3. Knowledge of the consequences peripheral criminals face under joint and several liability is an invaluable tool in solving many crimes. Cops and DAs are overjoyed to cut a lesser penalties deal with one crime gang member who calls in and rats out his buddies after weighing the odds that he will be caught and fry for a store clerk murder another of his homies actually did. If they remain in a conspiracy to silence after a crime goes far worse than they thought - judges and juries in any country tend to hold that they thus tacitly endorse the crime committed and had no remorse that drove them to give justice to the victimized...So justice falls just as heavily on the minor contributors to a collective act.

"But I just guarded the Death Camp fences with a gun! I didn't personally gas a single non-Aryan with cyanide pellets!"

"I had no idea when I sent prisoners to Siberia which would freeze and die, and which would survive! Blame the prisoners for failing to adjust, not me!"

Lois said...

My experience with jail and prison inmates is that the death penalty is a deterrent and the death penalty for an accomplice will be also. Amazes me how conversant they are with penalties!

cokaygne said...

By smoking marijuana, they would have avoided the death penalty in CT.

I abhor the death penalty, but articles like this do no favor for those who argue against the death penalty. ABC's story, when matched against the facts that these men were equal partners in a spree of armed robberies, only served to harden one's heart.

tjl said...

"Can the trial judge overrule the jury’s death verdict?"

No, but there is an automatic appeal of a death sentence.

M. Simon said...

Man those Texas juries have it in for guys just driving around looking for people to rob.

It is so unfair.

cyrus pinkerton said...

Revenant,

I posed this question to Fritz:

If it's a true deterrent, why wasn't it a deterrent?

(I'm reading Fritz's use of the expression "true deterrent" to mean an effective deterrent.)

In response you wrote this:

A deterrent is "something which discourages or restrains something from acting or proceeding". E.g., bars and guardrails deter people from climbing into the animals' pens at the zoo. Despite that, several times a year some nimrod manages to climb in anyway and gets made into kibble by a polar bear, because the bars *discourage* the activity. They do not make it impossible.

Thank you for your definition of deterrent, Revenant. However, you haven't answered the question. In fact, you haven't even tried to answer the question. If, as Fritz states, capital punishment is an effective deterrent, why didn't it work in this case?

Now, before you start typing a response that again doesn't answer the question, stop and think for a moment. It's quite obvious that capital punishment is not a perfectly effective deterrent. You needn't repeat that irrelevant observation.

If capital punishment is an effective deterrent, as Fritz claims, what went wrong in this instance? Unless you can explain why capital punishment was not an effective deterrent in this particular case, you haven't answered my question.

John Kindley said...

Good points, Cedarford. I'm inclined from this discussion to recognize the legitimacy of the principle underlying the felony murder statutes, which makes defendants responsible in some way for the acts of their criminal co-conspirators. I still think, however, that when it comes to the death penalty specifically, the actual personal intent of the defendant should be determinative, which has been my main point. It also would make sense to have a wider range of possible prison terms for felony murder, allowing the actual intent and culpability of the defendant and the foreseeability of the homicide that actually occurred to be taken into account at sentencing.

Pogo said...

Re: "Unless you can explain why capital punishment was not an effective deterrent in this particular case, etc. etc."

Yes, Revenant, why can't you come up with a perfect deterrent that works every time? Why can't you perfectly control human behavior? Why don't birds suddenly appear every time you are near? Why don't I have a pony that flies?

From Inwood said...

John K

If you don’t understand my writing about why the driver is not somehow a better person then the shooter, read Beth’s comment and she’s against the death penalty. And then read cedarford’s where he notes that joint liability is “traditional” too.

I too am all for “fairness”, especially fairness to the vic & his loved ones, & I don’t think it fair that you feel that the driver (or others feel that the lookout) is somehow less involved in the armed robbery which in this case, surprise, led to a death. And I don’t want to hear about unintended consequences.

Please, let me be polite & not take my deep feeling out on you: you have let your opposition to the death penalty lead you to a distinction which has no application beyond theoretical discussion.

The driver was a full participant in this & a vital cog. No driver, no crime. Take the death penalty off the table here & if the shooter gets life or a long jail term, the driver & in other cases the lookout, should get life or the same long jail term. As should the other participants who didn’t shoot anyone or even fire their guns. And I wouldn’t be put off by the fact that some killers literally get away with murder or that, to borrow an old Jewish joke, the “shooter was worse”.
BTW, Cedarford made a Nazi death camp analogy. One of my favorite “not me” stories (and it may be apocryphal) was the one about the German functionary who sat at a table when Jews arrived at camp & decided who was fit for helping the Third Reich; the fit went to the worker’s shacks. His excuse was that he actually saved people! Um, about the unfit? Nevermind.

Tjl I understand, of course, that all jurisdictions have an automatic appeal of a death sentence (in NY the intermediate courts are skipped; it goes right to the top). I’d like to see what would happen otherwise if his counsel forgot to file timely the notice of appeal! I just wondered if the trial judge can exercise some “oversight” & set what he thinks is an egregious verdict aside right then & there.

Drill Sgt.

We never disagree on substance!
My point is that Felony Murder statutes aren’t restricted to the scenario you envision: the two gunmen in the bank only one of whom actually shot the dead vic; they cover (maybe not in every jurisdiction) lookouts & drivers & the robber who was in the vault counting the money while the shooting was on the bank floor.

From Inwood said...

John

The moving fingers go on but not fast enough.

You have read cedarford's post but still hold out.

One more time & then I must, with all due respect, give up:

Juries have the discretion even in a felony murder case as to whether to go for the death penalty.

Presumably his lawyer made all the points that you did & the jury heard them.

Some juries decide one way on penalties & others decide another way; some juries let some people get away with murder. Some juries go for the death penalty even where the perp is mentally challenged.

The distinctions you make between the various participants in an armed robbery which led to a fatal shooting are not compelling to me.

And they will be considered in the appeals process.

Regards

cyrus pinkerton said...

To all those who answered that the deterrent value of capital punishment rests with the fact that it deters future crime by the same criminal, I remind you that, in principle, life in prison without the possibility of parole achieves the same result.

For all who support capital punishment, I have this question:

What rate of capital punishment applied to the innocent are you willing to accept (e.g., 1 wrongly executed person per 10? per 100?)

cyrus pinkerton said...

Pogo,

Why does it come as no surprise that you found something inane to say?

If you believe capital punishment has deterrent value, explain the mechanism by which it works. Or, if you claim the mechanism is unknown, explain how you have come to believe it is an effective deterrent.

From Inwood said...

It's amuses me that there are people who say that

- Perps know that capital punishment exists in TX.

- Some still commit capital crimes in TX anyway.

- QED The threat of capital punishment does not act as a deterrent in TX to capital crimes.

Logic 101: not a syllogism.

The word "some" is a red herring, to use a highly technical term.

Also, by parity of illogic:

- Perps know that non-capital punishment exists for non-capital crimes in TX.

- Some still commit non-capital crimes in TX anyway.

- QED The threat of non-capital punishment does not act as a deterrent in TX to non-capital crimes.

Pogo said...

Re: "in principle, life in prison without the possibility of parole achieves the same result."

In principle, but not in fact, as parole happens despite directives otherwise. More, lifers can and do kill while in prison (other prisoners, guards, and, if they escape as they are wont to do, innocent citizens). They are also involved in assaults, rape, and theft. And they do so with impunity, because there are no more punishments to exact, so their destructive acts do not cease.

The death penalty primarily serves to keep the offender from re-offending. Any deterrent value is merely a bonus, so I don't really care if it has any such effect at all. I suspect it does, but such is impossible to prove, and the difference is minor. But a dead killer cannot kill again. That seems worth it to me.

"it come as no surprise that you found something inane to say"
Cyrus, always with the condesending insults. Your prior questio about deterrence not being perfect was juvenile. One can only respond in kind.

From Inwood said...

It's been pointed out on the thread & elsewhere & I agree: if only life imprisonment meant that literally, rather than in too many cases "hey he's been a model prisoner for 20 years, reads Shakespeare, listens to Beethoven, helps other perps to get some larnin', has found a purpose to his life (is it OK to have found JESUS or is that déclassé?), that is, so it's OK to let him out early."

From Inwood said...

In my 10:20, the word "it's" should've obviously been "it".

But I used spellcheck. Duh!

cyrus pinkerton said...

Pogo,

I didn't ask a question about deterrence not being perfect. You should read more carefully before responding.

Since you raise the subject, can you tell me what percentage of lifers kill in prison and what percentage escape prison and kill? I think this is relevant if you are going to argue the practical aspects of capital punishment.

Pogo said...

"what percentage of lifers kill in prison and what percentage escape prison and kill? "
Anything higher than 0% is unacceptable.

All Things Considered, March 7, 2005 · A federal judge in San Francisco is due to sentence five leaders of a California prison gang. The men have already pleaded guilty to drug dealing, extortion and murder across northern California.

What's unusual is that the gang leaders were already serving life sentences in one of America's most secure prisons when they ordered the crimes. ...Experts say these gangs control crime far outside prison walls and across the country.



From the DOJ: "The homicide rate in state prisons fell from 54 per 100,000 prisoners in 1980 to 4 per 100,000 in 2002."

*"Prisoners on death row are 250% more likely to murder, in prison, than are prisoners in the general population. Lester, D., "Suicide and Homicide on Death Row", American Journal of Psychiatry, 143, 559, 1986."


United States Court of AppealsFor the Seventh Circuit"The most helpful analysis of escapes from United States prisons that we have found, Richard F. Culp, “Frequency and Characteristics of Prison Escapes in the United States: An Analysis of National Data,” 85 Prison J. 270 (2005), unfortunately excludes from its study “walkaways from minimum-security facilities, failures to return from approved absences, and escapes from custody staff while being transported outside,” id. at 275, although almost 90 percent of all escapes are walkaways. Id. at 278; Camille Graham Camp & George M. Camp, “The Corrections Yearbook 1997” 18 (Criminal Justice Institute, Inc., 1997).

And while the Culp study includes recaptures after an escape, it does not reveal whether a recapture involved violence. Id. at 281-82. More than 6 percent of the escapees committed crimes while on the lam, and many of these were violent crimes, id. at 285-86, but that is not evidence
that escape itself is likely to be violent; for all that appears, the escapees were merely resuming their previous criminal careers. Six percent of the escapes in the study involved violence against prison staff, id. at 285—violence
on the way out, as it were—but there is no indication of how many of the recaptures (some 75 percent of escaped prisoners are recaptured, id. at 282) involved violence. The study notes that records of prison escapes are not standardized and that recapture data are even less reliable than escape data."


Human Rights Watch "The characteristics of prison rapists are somewhat less clear and predictable, but certain patterns can nonetheless be discerned. First, although some older inmates commit rape, the perpetrators also tend to be young, if not always as young as their victims--generally well under thirty-five years old. They are frequently larger or stronger than their victims, and are generally more assertive, physically aggressive, and more at home in the prison environment. They are "street smart"--often gang members. They have typically been convicted of more violent crimes than their victims."

Too many, I'd say, Cyrus. In comparison, zero of those put to death ever commit another crime.

From Inwood said...

It’s been noted, ad nauseam, by assorted self-congratulatory moralists, that it’s better for ten, 100, 1,000, whatever, up to ∞ guilty guys to go free than one innocent guy be imprisoned, or, in this case, better that every miscreant be spared the death penalty lest one innocent guy be executed.

I’m reminded of the story of how a distinguished British Jurist quoted the original maxim to an oriental visitor, who replied “better for whom?”

Revenant said...

However, you haven't answered the question. In fact, you haven't even tried to answer the question. If, as Fritz states, capital punishment is an effective deterrent, why didn't it work in this case?

Cyrus,

Were you interested in hearing an answer to the question, rather than interested in finding something to argue about, you would have noticed that the entire rest of the post you quoted dealt with situations in which the death penalty would or would not actually deter people. Pull your head out of your ass and go back and read it.

And spare me the about how I "haven't even tried to answer the question". I answered the question in excruciating detail. You just haven't even tried reading the answer.

paul a'barge said...

Here is another picture of Foster doing the hands-on-glass thing with the mother of his child (different woman) in 2001.

Apparently, Foster is quite adept at wrangling the empathy from those who forget about the victims of crime.

Look. We don't execute enough criminals. We should be executing child predators upon second offenses, for example. And anyone involved in an incident in which first degree murder is committed should hang as well.

Touch the glass, Foster, on your way down to hell.

cyrus pinkerton said...

Revenant,

You are terribly slow somedays. I didn't comment on the rest of your post because it had NOTHING to do with the issue I was discussing. Do you need a pat on the head for the relevant part of your response?

I answered the question in excruciating detail. You just haven't even tried reading the answer.

No, you haven't. I'll give you the benefit of doubt, however, and simply assume you didn't understand the question, even though I asked it twice. In fact, I'll give you a third chance since I'm feeling so generous (but do remember, please, that three strikes and you're out):

If, as Fritz claims, capital punishment is an effective deterrent, why didn't it work in this instance?

Good luck Revenant.

Pogo said...

Cyrus,
No judicial remedy is 100% effective (i.e. that explains why any action will fail "in this instance"), except a noose, which is 100% effective at preventing future crimes by that miscreant.

"Efficacy" is graded in percentages. Your question is asinine.

cyrus pinkerton said...

Pogo,

I asked you this question:

What percentage of lifers kill in prison and what percentage escape prison and kill?

You quote extensively from various sources, with all but one of the quotes having no relevance to the question asked. Why?

The short answer is that you don't know the answer to the question. But fortunately I'm going to give you a second chance ...

Pogo, what percentage of capital punishment victims are innocent of the crime for which they are executed? What do you think is an acceptable rate of wrongful execution?

Pogo said...

Re: "The short answer is that you don't know the answer to the question."

No relevance to the question asked?You're quite wrong. The data I gave show tyhe answer is more than zero, which is unacceptable. The data suggest the rates are small. Why you refuse to agree is either indicative of bad faith or evidence of an inability to read.

It is sometimes said that "it is 100 times better guilty man goes free to punish an innocent man", which raises the query better for whom?

An acceptable rate of wrongful execution?
As close to zero as humanly possible. But not zero, which applies a standard of perfection unknown to human affairs.

cyrus pinkerton said...

Pogo,

In fairness, I asked this:

What percentage of lifers kill in prison and what percentage escape prison and kill?

Your response makes no attempt to quantify these rates. I acknowledge your statement that "[a]nything higher than 0% is unacceptable,"
but this does not begin to answer the question. I suspect the reason you've answered the way you have is because you don't know the answer. I wish you'd simply admitted as much rather than quoting irrelevant material at length.

What's interesting about your response to my second set of questions is that you seem willing to accept a nonzero rate of innocent death in capital punishment cases but not in cases involving prisoners serving life sentences. Can you explain this to me? Why is innocent death completely "unacceptable" in one instance but tolerable in another (as long as it is small)?

Revenant said...

I didn't comment on the rest of your post because it had NOTHING to do with the issue I was discussing.

It answered your question. I explained in considerable detail why most murders are not deterred by capital punishment.

I will re-summarize the explanation for you and for any people who weren't bright enough to understand the first time around: capital punishment only deters murderers who are committing murder for rational reasons. Most murder is not committed as the result of a reasonable consideration of costs and benefits, ergo most murder isn't deterred by capital punishment.

To summarize that in even *simpler* terms that someone as unintelligent as you might be able to figure out: anyone who responds to "I'm strapped, let's go jack" by saying "sure, I'll drive" is probably too stupid to figure out that what he's doing is a bad idea.

As for your complaints about Pogo's proof -- all he needed to do to prove you wrong was established that the murder rate for lifers was greater than zero. He did. This proves that life in prison is not as good a deterrent, for the person being punished, as execution is.

cyrus pinkerton said...

Pogo wrote:

No judicial remedy is 100% effective (i.e. that explains why any action will fail "in this instance")..."Efficacy" is graded in percentages. Your question is asinine.

Pogo, your answer shows that you did not understand the question. I asked WHY capital punishment was not an effective deterrent in this instance. In case it's not obvious to you, I was trying to encourage Fritz to describe the mechanism by which he imagines capital punishment acts as a deterrent.

Since you may still be confused, let me give you an analogy. Let's say my car breaks down. I have the car towed to Pogo the Mechanic. I ask WHY my car isn't working. My mechanic Pogo explains to me that no car is perfect. Dissatisfied with this answer, I ask again: WHY is MY car not working? Pogo the Mechanic shakes his head and says no car works 100% of the time. My conclusion? This is the world's worst mechanic; I'm taking my car elsewhere for a diagnosis.

In summary, dear Pogo, your reply was asinine.

Pogo said...

Re: "quoting irrelevant material"
I think you enjoy being obtuse, Cyrus. I find it rather dull.
"dear Pogo"
And irritating.

"in this instance."
Revenant answered that perfectly. In this instance, Foster is
1)irrational, and deterrence cannot work
2) a sociopath who guessed wrong on his chances of being caught.

Why deterrence failed here in this instance is of little interest, however. The state's primary directive is to protect its citizens, not its criminals.

The Exalted said...

one problem with mandating the death penalty for all armed robbers is that nobody would ever be convicted of armed robbery

the rest of your peers don't share your enlightened view of capital punishment

The Exalted said...

i saw this asked but not answered:

what rate of executed innocents is acceptable?

unjust life without parole can be remedied, somewhat, through release and our tort system

how can unjust execution be remedied?

The Exalted said...

Why deterrence failed here in this instance is of little interest, however. The state's primary directive is to protect its citizens, not its criminals.

uh, deterrence is about the interests of society by deterring the execution of crimes, not the interest of the would-be criminal

Pogo said...

Re: "how can unjust execution be remedied?"

It can't. That is a decent argument against the death penalty. Some consider it a trump card. I don't.

"deterrence is about the interests of society by deterring the execution of crimes"
NO. Criminal justice is best when it segregates away from civilized people those persons unable to abide by society's rules. Deterrence has only a limited role.

cyrus pinkerton said...

Revenant,

Surely you cannot be as dumb as you are pretending to be today.

Here's your latest dumbcluckery:

As for your complaints about Pogo's proof -- all he needed to do to prove you wrong was established that the murder rate for lifers was greater than zero. He did. This proves that life in prison is not as good a deterrent, for the person being punished, as execution is.

Pogo's proof? Ahahahahahahahaha!
I didn't ask Pogo for a proof. I asked him this:

What percentage of lifers kill in prison and what percentage escape prison and kill?

Being generous to Pogo, his answer is "nonzero." How do you think that "proves me wrong," Rev? In fact, how do you prove a question like the one I asked wrong, Rev? Please answer these questions--I'd appreciate more of your wacktacularly doofy answers.

I imagine it's been a long time since you've been in school/college, Rev, and I suspect you've never taught. But let's pretend you are a teacher and you've asked your students to answer the following question:

What percentage of US senators represent the state of California?

Revenant, how much credit would you give for the following answers:

- It's nonzero.
- Anything greater than zero is unacceptable.
- I don't have to give a numeric answer because I've proved your question wrong!

Revenant, in this order, please: read, think, write.

cyrus pinkerton said...

Revenant wrote:

It answered your question. I explained in considerable detail why most murders are not deterred by capital punishment.

Wrong! I didn't ask about "most murders," Revenant. I asked about one particular case. You didn't answer the question asked. STRIKE THREE!

Sorry, Revenant. I don't know if this will make you feel better, but at least you went down swinging. Better luck next time!

cyrus pinkerton said...

Pogo wrote:

Revenant answered that perfectly. In this instance, Foster is
1)irrational, and deterrence cannot work
2) a sociopath who guessed wrong on his chances of being caught.


Well, no, Revenant didn't answer, but thank you for answering on his behalf. (BTW, I'd be really interested to see where Revenant discusses Foster, i.e., "this instance;" please provide the timestamp for the comment in which he specifically discusses Foster and "this instance.")

So, you've concluded Foster is irrational. On what evidence is this conclusion based? Also you state that he "guessed wrong" on his chances of being caught. What's the basis for that assertion?

Pogo said...

Oh yeah. I remember this game. You keep moving the goalposts or redefining your question so that it cannot be answered even though the minute point you raise is of no interest at all.

Why didn't deterrence work for Foster?

I don't know. Neither does Foster. I posted reasonable guesses. A rational actor would avoid these activites. An irrational man won't be deterred. The rare sociopath, even though rational, would not avoid it, gambling that he won't be caught. Risk, not deterrence, is at play for him.

But in the end it doesn't matter. Deterrence is of limited utility. Execution is useful for such people. And because of joint liability, he will die for his crime.

It appears that some people are just too selfish or stupid to figure out that driving a killer to the murder is a bad idea in Texas.

cyrus pinkerton said...

Pogo,

There's quite a fair amount of statistical evidence to show that capital punishment has essentially no value as a deterrent. There is also undeniable evidence that miscarriages of justice occur in capital punishment cases. We also know that capital punishment carries a very high price tag--life imprisonment is a cheaper option than capital punishment.

In 2006, 25 countries carried out one or more executions. Here's the list:

Bahrain, Bangladesh, Botswana, China, Egypt, Equatorial Guinea, Indonesia, Iran, Iraq, Japan, Jordan, North Korea, Kuwait, Malaysia, Mongolia, Pakistan, Saudi Arabia, Singapore, Somalia, Sudan, Syria, Uganda, the United States of America, Vietnam, Yemen.

Hey, look, the whole "axis of evil" makes the list along with us! Isn't it reassuring to see what fine company we keep?

The reality is that what capital punishment proponents like about capital punishment has nothing to do with deterrence, economics, or justice. It's time they stop pretending it does.

Pogo said...

Re: "life imprisonment is a cheaper option than capital punishment."
Not when execution is swift.

Re: "...nothing to do with deterrence, economics, or justice."
Prove it. Prove that I don't consider justice the reason. It is the very essence of justice to remove a murderer from society so that he cannot murder again. Saying "It's time they stop pretending " is offensive and bullshit.

Countries with socialism:
France, England, China, Nazi Germany, Cuba, Switzerland, Soviet Union, Vietnam, etc.
Yawn.
What's next, countries that traded arms with Saddam?
Countries that start with A?
Come on cyrus. you obviously think the absence of the death penalty is the height of humanity. I think it's a foolish belief.
We'll not convince each other though.

I never understood all the tears spent for murderers. They spend their tears on themselves alone. What care you for the victim?

Revenant said...

Being generous to Pogo, his answer is "nonzero." How do you think that "proves me wrong," Rev?

Your claim:

To all those who answered that the deterrent value of capital punishment rests with the fact that it deters future crime by the same criminal, I remind you that, in principle, life in prison without the possibility of parole achieves the same result.

Crimes committed by dead men: 0

Crimes committed by lifers: more than zero (that you actually needed a cite for that fact cements your rep as a time-wasting schmuck, by the way).

Zero is not "the same" as any number greater than zero, ergo your claim that life in prison without parole achieves the same result as execution has been proven wrong.

This is also why nobody is going to deign to provide you with the exact post-conviction murder percentage for lifers -- it has been proven that it isn't zero, and that is all that needs to be proven to prove that your claim is wrong. It could be 100%, 0.0000000001%, or anything in between, and you're flat-out wrong either way.

The Exalted said...

you're confusing different reasons for punishment with each other

deterrence (less crime through changed societal behavior), incarceration (less crime through removal of this offender) and retribution (just deserts) are separate justifications for punishment

i imagine the other main reason, rehabilitation (less crime through changing the offender), doesn't fire your pistons

when it comes to capital punishment, i can see the retribution and incarceration/removal justifications. but the evidence dictates that states that impose capital punishment do not have lower murder rates, leading the rational to believe there it is not an effective deterrent. (the cleanest evidence for this is looking at the stats for states before and after they imposed the death penalty)

of course, when the tree huggers institute sharia law, all bets are off

The Exalted said...

Crimes committed by lifers: more than zero (that you actually needed a cite for that fact cements your rep as a time-wasting schmuck, by the way).

the number of unjust executions is also greater than zero.

if someone is going to be in the business of causing irremedial harm, i would rather it be the criminal and not the state

Revenant said...

Wrong! I didn't ask about "most murders," Revenant. I asked about one particular case. You didn't answer the question asked. STRIKE THREE!

I offered the likely explanations. The definite explanation is available only through mind reading, and I've sworn never to use my mind reading powers for personal gain.

If a detailed description of the reasons people might or might not be deterred isn't good enough for you, I'm fine with that. You can live in a state of perpetual confusion forever.

Hey, look, the whole "axis of evil" makes the list along with us! Isn't it reassuring to see what fine company we keep?

Yawn.

cyrus pinkerton said...

Pogo wrote:

Not when execution is swift.

Yeah, I suppose we could eliminate the wasteful trial part of the process.

Prove that I don't consider justice the reason.

Let's see... You realize that serious mistakes have been made in capital punishment cases and that the percentage of executions that are based on a miscarriage of justice is nonzero. Nevertheless, you support capital punishment. You realize that by carrying out an execution, the defendent loses the right to appeal his conviction on the basis of new evidence. Nevertheless, you support the death penalty.

In what way do you believe capital punishment achieves justice that life imprisonment without parole does not?

Countries with socialism:
France, England, China, Nazi Germany, Cuba, Switzerland, Soviet Union, Vietnam, etc.


You really don't know very much about history or international politics, do you?

I never understood all the tears spent for murderers

The concern that those of us who oppose capital punishment have about the practice doesn't reflect "tears spent for murderers." Rather, it reflects concern that the system now in place is too prone to errors and removes the right of defendents to appeal. Since it also has essentially no deterrent value and is not economically efficient, there is no good reason to support it.

What care you for the victim?

We all care for the victims, Pogo. Tell me please how my opposition to capital punishment leads you to believe I care less about the victims of violent crime.

Revenant said...

i imagine the other main reason, rehabilitation (less crime through changing the offender), doesn't fire your pistons

I think rehabilitation would be a swell idea, and if anyone ever figures out a way to do it then we should definitely give it a try. The prison system sure as hell doesn't accomplish that goal, though.

but the evidence dictates that states that impose capital punishment do not have lower murder rates, leading the rational to believe there it is not an effective deterrent.

The evidence is more complicated than that. Stable nations which have a death penalty AND make regular use of it, like China and Saudi Arabia, tend to have extremely low murder rates.

Last year there were 16,111 homicides and only 53 executions of convicted criminals. Assuming constant murder rates and an average of 1 murderer per murder that means we're executing 0.033% of murderers and letting 99.967% of them live. Obviously we shouldn't expect much of a deterrent effect from such a feeble use of capital punishment, whether or not a deterrent effect actually exists -- a one-third of one percent chance of eventual execution does not pose a significant risk factor, especially compared to all the other risks involved in criminal activity.

the number of unjust executions is also greater than zero.

I noted earlier in the thread that the possibility of executing innocents was my objection to the death penalty.

But Cyrus' claim was that the person being executed would experience the same deterrent effect by being jailed forever instead. That claim is objectively wrong. The issue of whether or not executions result in a net savings of innocent life overall is a separate one.

cyrus pinkerton said...

Revenant,

I'm so sorry, I completely underestimated how poor your reading skills are. Let me repeat my assertion, with emphasis added, to help you along:

To all those who answered that the deterrent value of capital punishment rests with the fact that it deters future crime by the same criminal, I remind you that, in principle, life in prison without the possibility of parole achieves the same result.

Now Revenant, perhaps you can get someone to explain to you what in principle means (as opposed to in practice).

By adding the phrase in principle, I implicitly acknowledge that in practice there is a possibility of prisoners escaping, committing crimes, etc... Proving that these things can happen in practice does not address ANY of my questions, as you suggested, nor does it refute my statement above about life imprisonment in principle. This is obvious to anyone who understands the meaning of words and logic. You've made a very stupid mistake here.

Now, Pogo's response to me was to my questions, not to the statement you cite. You know this quite well, as you again refer to it here:

This is also why nobody is going to deign to provide you with the exact post-conviction murder percentage for lifers ...

In other words, you're now being dishonest too.

Revenant, you're in a hole; it would be a good idea to stop digging.

cyrus pinkerton said...

Revenant wrote:

But Cyrus' claim was that the person being executed would experience the same deterrent effect by being jailed forever instead. That claim is objectively wrong.

This simply is not what I claimed, but apparently Revenant is either too stupid to understand what I wrote or he finds it very convenient to lie about it.

cyrus pinkerton said...

Revenant,

When did "yawn" become the favorite clever counterargument by rightwingers?

Your linked reference to the "guilt by association" fallacy completely misses the mark. If you had read my comment and understood it, you would have seen that I specifically list the reasons why our capital punishment system is inefficient and unjust and therefore should be eliminated. Following that paragraph, I list the other countries that also employ capital punishment. At no time do I argue that we should reject capital punishment because the listed countries retain it. I merely note that whatever our reasons are for clinging to capital punishment, we find ourselves in some pretty unsavory company. This does not constitute guilt by association. Rather, it shows us what company we keep in our acceptance of the death penalty.

Good effort though, Revenant. It was a better than average try for you.

Pogo said...
This comment has been removed by the author.
Pogo said...

"I suppose we could eliminate the wasteful trial part of the process."
That would be dumb, Cyrus. But we could eliminate the wasteful part of the trial process. Speedy trials were part of the Constitution once.

"In what way do you believe capital punishment achieves justice that life imprisonment without parole does not?"
It permanently removes the chance for a murderer to murder another man, not an inmate, guard, or civilian during an escape. He is not fit to live among us, and I see no need to require the rest of us to pay for his room and board.

"You really don't know very much about history or international politics"
Well, at least more than you do.

"the system now in place is too prone to errors"
"too prone"? I disagree. Errors exist in all human systems. Limit them as best we can,and that's all we can do.

"not economically efficient"
This is not an issue of economic efficiency, but a speedy trial and immediate execution, as in the times of Washington and Lincoln, would be quite efficient.

"We all care for the victims, Pogo."
Bullshit. All your efforts here were on behalf of the criminal. Not a word for the victim.
And now that you've devolved again into name-calling, I'm done.

Pogo said...

P.S. "we find ourselves in some pretty unsavory company" is the "guilt by association" fallacy.

Revenant said...

I remind you that, in principle

You're under the mistaken impression that tossing an "in principle" into your statement lets you say things that have no bearing on reality and get away with it. But of course, even "in principle" your statement is false, since a foundational principle of human nature is that we and all that we produce are less than perfectly efficient. So even "in principle", those we imprison will be less than perfectly restricted in what they do.

What you wrote was this:
I remind you that, in principle, life in prison without the possibility of parole achieves the same result.

It now emerges that what you actually meant was this:

I remind you that, in a magical fantasyland utterly unlike the real world, life in prison without the possibility of parole achieves the same result.

In light of this revelation I apologize for saying you were wrong. You're quite right: in fantasyland, imprisonment works just as well as execution. It just doesn't work as well in the real world, for the reasons Pogo and I gave. So, if you'll forgive us for asking that you join us here in the real world -- do you concede, as Pogo proved, that execution of a criminal here in the real world prevents further crimes by that criminal better than imprisonment would?

Revenant said...

When did "yawn" become the favorite clever counterargument by rightwingers?

I don't know. Find a right-winger and ask him. My guess would be "shortly after left-wingers stopped coming up with original ideas". Late 19th century, probably?

Your linked reference to the "guilt by association" fallacy completely misses the mark.

You used the guilt by association fallacy, which is why I linked to it.

If you had read my comment and understood it, you would have seen that I specifically list the reasons why our capital punishment system is inefficient and unjust and therefore should be eliminated.

I pointed out a fallacious argument. Your other arguments against the death penalty may or may not have been valid, but since I'm arguing neither for nor against the use of capital punishment I didn't bother giving them any thought.

The Exalted said...

i would imagine the number of lifers who escape or are otherwise let out is so small as to approach zero, if not actually zero.

and lifers will be in max security prisons, so any additional crimes they commit while incarcerated will be against other "scum," right?

so really, the argument that lifers could in theory commit more crimes doesn't hold much water.

the real reason people support capital punishment is because of the "eye for an eye" aspect appeals to their sense of justice. which is fine, just be honest about it.

Pogo said...

Re: " so any additional crimes they commit while incarcerated will be against other "scum," right?"

1. Violence against other inmates is wrong. A murderer who kills another man in prison demonstrates why he should not still be alive.

2. Gang leaders with vicious and murdering pasts are widely known to still run criminal enterprises from their cell, existing both in and outside of prison. Their activities include murder. Again demonstrating how their activities are not contained by mere chains, and why they should die.

The Egyptian Blind Sheik Abdel-Rahman ordered terrorist activities from his cell. His lawyer, Lynne Stewart, was convicted of conveying these messages.

3. The number of murderers who escape or are otherwise let out is not zero. zero. Why ypou chose 'lifers' is unclear.

4. "the real reason people support capital punishment "
And this important insight is based on what, exactly?
Even if true, so what?

Roger said...

Re capital punishment and deterrence: maybe, maybe not. Perhqaps it deters some, and if it does, we would never really know. Taking the entire question a bit further, we could note the entire penal system is certainly not a deterrent to criminal behavior. If it were as "effective deterrent", we would have no crime. The whole argument is asinine IMO

So what value is capital punishment? None except that it is retributive and serves on a very large level to remind people the state, acting as a an agent for society, does have the right to take a person's life when they have violated those laws that society enacts. And because it is the state, acting as agent for the people, that ensures it is not mob justice.

John Kindley said...

The Exalted said two things in particular which ring true for me:

"if someone is going to be in the business of causing irremedial harm, i would rather it be the criminal and not the state"

"the real reason people support capital punishment is because of the "eye for an eye" aspect appeals to their sense of justice. which is fine, just be honest about it."

I became persuaded, after being more or less on the fence, that the death penalty is justified after seeing "Dead Man Walking," ironically a putative anti-death penalty movie which nevertheless did a very good job of showing both the condemned man's perspective and the victims' perspective. One got the sense that the enormity of what the character played by Sean Penn had done would never have been brought home to him in the absence of his owm impending cold-blooded execution by the state, if he had just been left to rot away in a cell nursing his resentments and self-justifications.

I actually think that anyone who has committed something bad enough to warrant life without parole should be executed instead. I also think that arguably some crimes besides murder should be included in this category, like rape of a child and even aggravated rape of an adult in certain circumstances. My problem with Foster's execution is that I can readily imagine (I of course can't know) a degree of viciousness in him that is less than that of, e.g., a child rapist, who normally does not face execution. I also have a problem with the fact that if his compatriot had not pulled the trigger Foster would not be facing the death penalty, even though his actual moral reprehensiblity for engaging in this criminal enterprise would have been exactly the same (with the significant difference that in the scenario that actually happened where a man was killed he also aided the murderer after the fact by driving him away from the crime scene).

I don't like the fact that a man sentenced to life without parole in a state without the death penalty has effectively nothing left to lose, and can rape and murder fellow prisoners and can use and sell drugs and can direct gang operations and murders on the outside, without serious consequences.

On the other hand, one reason for sentencing some people to life without parole is the problem of possibly executing an innocent man, or even one who isn't quite so evil and deserving of death as we or the jury may have been led to believe, which is not to be taken lightly, as if it were unavoidable collateral damage. I would suggest that to impose the death penalty the prosecution should meet an even higher burden of proof that the guy did it than "beyond a reasonable doubt," say "beyond the shadow of a doubt." One could object: But this would imply some uncertainty about the convictions of those who are "merely" sentenced to life without parole, even though guilt was proved to a jury beyond a reasonable doubt. They're not really sure I did it, are they, so why do I have to sit in prison for the rest of my life for a crime they're not "sure" I committed. But this is reality. A jury might be "only" 95 or 99 percent sure that the defendant accused of serial murder is guilty of the crimes he's accused of, but given the alternative of setting him free they quite reasonably convict. I don't see a problem with simply acknowledging this reality. I don't think it would be a bad thing if judges and juries were expressly allowed to take into account some minor residual doubt about guilt in imposing sentence or in deciding whether to recommend the death penalty. For the death penalty to be acceptable, we should not be 95 or 99 percent certain that the defendant did what he's accused of, but 99.9 or more percent certain.

John Kindley said...

Incidentally, if we cleaned up the prisons somewhat by executing everyone who would normally get life without parole (assuming we're sure beyond the shadow of a doubt they did it), this would increase the likelihood that the department of "corrections" might actually be able to serve the rehabilitative function it pretends to serve, and would mitigate to some extent the grievousness of the evil suffered by those who spend time in prison hell holes for crimes they didn't commit. We can further clean up the prisons by not sentencing non-violent offenders to prison at all or by putting them in a separate facility such as work release, reducing the range of potential victims for the violent prisoners who remain to each other.

Roger said...

This thread is probably dead, however a musing on the use of murder rates to make inferences about the effectiveness of deterrence: We will never know. It is entirely possible that murder rates could be even higher had not the death penalty been place. Deterrence exists only in the mind of the person being deterred. Murder rates--and probably only premeditated murder rates, only identify the people who werent deterred by the death penalty.

The Exalted said...

no, roger, we can know

look at the murder rates in a state in the 5 years before it had the death penalty and the 5 years after. (by state, i of course mean a state of the united states, not foreign state, as seems to have been misunderstood before)

or, if it worries you that one particular state is not a large enough sample, look at all of the states in the five years before they had capital punishment and the five years after.

there will be your answer to your question "does capital punishment deter murder". . .

Roger said...

Exalted: Unless you can disaggregate the data, all you can say is that there is no apparent correlation between between capital punishment and murder rates. It says nothing about deterrence, as deterrence exists only in the mind of the deterred. Murder rates alone cannot tell you that a potential murder was deterred by the existence of the death penalty. It only give you the rate of those that werent deterred.

This may seem like an excessively pendatic distinction, but I suggest its an important distinction. For the record, I dont buy the deterrence argument totally--it may deter some, but we will never know. I am a retributionist as I said above.

Roger said...

Exalted--I should expand my point about disaggregating the data. It would seem to me that the only type of murder that might be deterred by capital punishment is premediated murder. The act of premeditation is supposedly a "rational" decision, unlike a "crime of passion" or immediate reaction that does not involve a structured thought process.

Roger said...

premediated = premeditated sorry

Revenant said...

and lifers will be in max security prisons, so any additional crimes they commit while incarcerated will be against other "scum," right? so really, the argument that lifers could in theory commit more crimes doesn't hold much water.

Your argument only makes sense if we assume that the lives of people in prison have no value. But if the lives of people in prison have no value, there can be no objection to the death penalty -- just kill 'em all and be done with it.

look at all of the states in the five years before they had capital punishment and the five years after

That doesn't necessarily tell you anything about the death penalty's effectiveness, since even if the DP has an effect on the murder rate it certainly isn't the ONLY thing that affects the murder rate.

That said, take a look at this page of national homicide statistics and compare it to this graph of executions in the United States. Two things emerge:

(1): There was a dramatic increase in the murder rate from 1962 to 1980. The 1967-1976 ban on capital punishment falls right in the middle of this, and the period of legal but incredibly rare executions from 1977-1984 overlaps with the end of it.

(2): From 1984-1999, the execution rate climbed dramatically while the murder rate dropped dramatically. The peak in executions, 1999, had the lowest homicide rate since 1966 -- the year before the death penalty was first banned.

Food for thought. The data doesn't prove a deterrent effect from the death penalty, but it certainly doesn't rule one out either.

cyrus pinkerton said...

"It takes a man to suffer ignorance and smile ..."

Revenant and Pogo, I'm smiling. :)