June 27, 2006
Tuesday
from - smijer
Good morning.
In no particular order:
Dave, on Scalia, on the death penalty. Notice Scalia's words: "...the good to be derived from capital punishment — in deterrence, and perhaps most of all in the meting out of condign justice for horrible crimes — outweighs the risk of error." Notice the frame of reference - the "good" from capital punishment is perhaps more a result of simple retribution ("condign justice" according to his flowery misnomer) - than from deterrence. Its appeal to our emotional need for retribution is more important than a result that objectively improves society and protects life. Of course this result is purely illusory with relation to the death penalty - since it is a poor deterrent. Maybe that's why flowery references to our emotional impulses get the bigger role in Scalia's mind.
Got a call from a friend in Oregon - he had just seen and been very impressed by a documentary about this. Wanted to know if I was familiar with it. I told him that I remembered reading about it in the paper, but that I've never been to the place the locals call "Whutwull". It's neat that this is still reaching people.
Saturday, I listened to the audio of the Pulse Concert on my e-bay special VCD from Singapore. Maybe the 20th time listening or watching. This was the first time I noticed that, at the end of the first disc, in an instrumental number the name of which I can never think of, the long-haired guitarist who isn't Gilmour slips in a line from the Dr. Who theme song. Ha.
Hold 'em for Jesus. Ha.
Been experiencing site problems. Very befuddling - looks like a name server had the URL mixed up, but even wierder than that in some ways. I won't go into details. Anyway, that's one small part of my absence yesterday.
Conversion to Wordpress is sidetracked by too many other projects, but we will get there.
Posted by smijer at June 27, 2006 07:32 AM
I hadn't seen Scalia's wording on this issue. I used to have more respect for his intellect, but I think he's gone off the deep end (some time ago, actually). By casting his thoughts in terms of "good", "risk", and "error", he suggests that he's trying to strike a balance in coming down on the side of capital punishment. Between what? On one side, there's the "risk of error", i.e., the probability that an innocent person will be executed. On the other side, there's the "good" of capital punishment as a deterrent. In decision theory and other approaches to decision making, we ordinarily try to cast such comparisons in common terms. If capital punishment were a deterrent, it would save X lives per year over the long run; the probability of error in executions will result in Y innocent people being executed per year, again over the long run. If X is greater than Y, that tells us something.
Unfortunately (for Scalia, at least--fortunately in the real world), most people find this approach to ethics basically wrong-headed. It sounds too much like consequentialism. (I have no idea whether Scalia is a consequentialist, but when he talks about a good for society outweighing an evil to an individual, it certainly sounds as if he's thinking along these lines.)
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Posted by RSA on June 27, 2006 11:47 AM Link to comment |
I think it would be somewhat better if he were actually trying to strike such a balance, primarily, rather than relying on b.s. notions of "condign justice".
I mean, without my law school education, I can't say to what degree or whether consequentialism is an appropriate ethical basis for judicial action. My understanding is that legal theories are more important to lawyers than ethical theories, but no legal theory is without an ethical framework of some sort. Even if a form of consequentialism is the wrong one for legal questions,it's got to beat the hell out of one that reduces to "needed killing".
If Scalia were trying to strike a balance like X lives saved from deterrence vs. Y innocent people executed, he would be forced to admit that X is zero or a negative number based on the evidence, and that Y is positive.
Actually, I think he is, from his statement, laying the responsibility of the (poorly struck - though he won't admit it) balance on the shoulders of the people, through the legislative process, and claiming that the court does not have the authority to override the judgment that the people have made on the matter.
I haven't yet satisfied myself over whether this is sound legal reasoning on the courts part. What is clear is that the Kansas law is morally egregious. In effect, it says that if evidence that the defendant was guilty is weak, but there were enough aggravating circumstances, then the juries should return a death sentence. So, caution against error should be set aside if the crime was awful enough. It matters if you got the wrong man unless whoever did it really did something terrible. No word for that but stupid.
I'll have to spend some time reading the decision (once I find it) and reflecting, before I can say whether the SC decision itsself was proper or improper. But, if I have time, I expect I will have something to say about it.
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Posted by smijer on June 28, 2006 07:23 AM Link to comment |
