Thoughts on street justice

[Robert66]

A car in recent times would be banned completely if it did not have brakes. There is a way also to prevent wrongful death in systems of justice, by removing the death penalty.

To solve brakes problems in cars you fix the brakes, you don't eliminate cars completely. Defective cars kill hundreds, if not thousands of innocent people every year, which by far exceeds the number of executions carried out in the US. In 45 years of capital punishment, around 1,500 people have been put to death, and even if a high percentage of them were based on wrong verdicts, it would be a ridiculous amount compared to the number of innocent people dying because of defective cars. These deaths are surely preventable if cars were banned, but no one thinks that's a reasonable solution.

As for your contention regarding the term 'wrongful execution', I would say that it is just as appropriate to describe the execution of an innocent person, and that your extra words 'deliberate evil intention' are merely a transparent veil thrown over an immoral and unnecessary feature of some justice systems.

That amounts to saying that intention plays no role in the moral assessment of an act. That's unreasonable. I know the New York times might not agree lately.

No, I haven't condoned such thing. The process is not designed to kill innocent people and it doesn't kill innocent people every time, and most likely it doesn't kill them most of the time. I also said that if systemic failures are found, in other words, if the process as designed is guaranteed to produce injustice, then a moratorium should be established until the problem is corrected. I'm not aware that there are such systemic failures specific to the legal procedures of capital punishment.

Here you have concisely made my argument for me. Thank you. A system which includes the death penalty is guaranteed to kill innocent people. Killing an innocent is injustice. Correcting the problem suggests itself - it is fruit which hangs almost as low as a peanut.

Here you are again arguing similarly to banning the manufacturing of cars, since it is guaranteed that innocent people will die because of it. It is guaranteed that medical procedures will kill innocent people by mistake. It is guaranteed that road traffic will kill innocent people. It is guaranteed that the existence of police forces will kill innocent people. None of these, just as legal procedures, were designed to kill innocent people, but no human design is infallible. There will be anomalies, mistakes, a range of failures for which there can be set a tolerance threshold. If too much cars, if too much medical procedures, if too much legal procedures fail, surpassing the reasonable limits of error, then one might expect a serious look into them to the point of considering their banning. So no, I have not made any argument for you.

The point is not that errors will occur, it is that many could be avoided altogether. Not just any errors, errors which cost lives. If your answer to the question "Which state would you rather reside in - a) one with the death penalty, or b) one without?" - is a), then you are choosing the option which includes the possibility of being wrongfully executed.

If one chooses b), one is choosing the option which includes the possibility that the author of a heinous crime against one of our loved ones, gets away with it without justice being served.

I won't disagree with you but think some evidence is required that 'some modern societies' do consider the death penalty ethical in a way which is sufficient.

Unlike cars or medical procedures, weapons are specifically designed to kill people and coercive institutions such as police forces and soldiers are allowed to exercise lethal actions against people. Even regular citizens are given the right to decide on the lives of other people under certain circumstances, such as self-defense, which implies that these societies find tolerable the death of people by the hand of others, given the circumstances. All of this, outside the courts of law and execution facilities. Controls might be set up, but everyone accepts that there will be mistakes, malpractices, accidents, that will kill a lot of innocent people. The one and only domain where you will get a fairly due process, involving complex procedures and proper controls before a fatal outcome, is precisely the death penalty.

Re. number of people killed by cars v number killed by courts, a question: The comparatively low number (1,500!) makes it ok, does it?

Re. Intention: your initial statement was 'A wrongful execution is a term more appropriate to describe an act where there is a deliberate evil intention to kill an innocent person.' I merely pointed out that any execution of an innocent is a wrongful execution. This does not 'amount to
saying that intention plays no role in the moral assessment of an act'.

Re. processes which kill: the difference, with the death penalty, is that the killings may be avoided - there is no requirement for the death penalty to exist within a justice system.

Re. 'If one chooses b), one is choosing the option which includes the possibility that the author of a heinous crime against one of our loved ones, gets away with it without justice being served.' Exactly how does the abolishment of the death penalty mean that 'the author of a heinous crime ... gets away with it'? On the contrary, the fact of many wrongful executions, resulting from unsound convictions, means precisely that the authors of many heinous crimes have gotten away with those crimes.

Re. 'everyone accepts that there will be mistakes, malpractices, accidents, that will kill a lot of innocent people.' No-one should accept even a single death of an innocent, if such a death is easily avoidable.

[Count Lucanor]

Re. number of people killed by cars v number killed by courts, a question: The comparatively low number (1,500!) makes it ok, does it?

You completely avoided the argument. It was not that deaths caused by human mistakes are OK, it was that it is not reasonable to think that the solution to deaths caused by human mistakes is to ban the activity where those mistakes take place. I gave you an example of an activity that carries much more deaths by mistake than capital punishment and you don't see anyone asking for it to be banned completely. You simply work to fix the mistakes.

Re. Intention: your initial statement was 'A wrongful execution is a term more appropriate to describe an act where there is a deliberate evil intention to kill an innocent person.' I merely pointed out that any execution of an innocent is a wrongful execution. This does not 'amount to
saying that intention plays no role in the moral assessment of an act'.

"Wrongful" allows for the possibility of evil and premeditated intention, but a mistake at worst could imply negligence. Since we are talking about mistakes in the justice system, and not evil and premeditated intent to harm, the term "wrongful" execution is not to be interpreted in this way.

Re. processes which kill: the difference, with the death penalty, is that the killings may be avoided - there is no requirement for the death penalty to exist within a justice system.

The death penalty can certainly be a requirement of the justice system, given the social consent about the appropriate punishment for every type of crime. Many people, including myself, believe that the only proportional punishment for some heinous crimes, is death. Once one learns about the stories of victims of crimes punishable with the death penalty, one gets a better sense of why any other form of punishment is not enough to serve justice.

Exactly how does the abolishment of the death penalty mean that 'the author of a heinous crime ... gets away with it'?

Because of the obvious reason that the criminal does not receive a punishment proportional to their crime. A couple of days ago a man that stabbed his mother to death in the US, spent only 17 years in prison and was released. His mother is dead, but he can enjoy life without much remorse. BTW, as soon as he was released, he went back to commit more crimes.

On the contrary, the fact of many wrongful executions, resulting from unsound convictions, means precisely that the authors of many heinous crimes have gotten away with those crimes.

You are yet to prove that executions from wrong convictions are really "too many".

Re. 'everyone accepts that there will be mistakes, malpractices, accidents, that will kill a lot of innocent people.' No-one should accept even a single death of an innocent, if such a death is easily avoidable.

If easy avoidable means not applying proper justice, then that "easy" comes at a very expensive price for society. And yet, everyone seems to accept the deaths of many innocent people by defective cars. No one argues how easily avoidable are those deaths if car manufacturing was banned.

[Robert66]

Re. number of people killed by cars v number killed by courts, a question: The comparatively low number (1,500!) makes it ok, does it?

You completely avoided the argument. It was not that deaths caused by human mistakes are OK, it was that it is not reasonable to think that the solution to deaths caused by human mistakes is to ban the activity where those mistakes take place. I gave you an example of an activity that carries much more deaths by mistake than capital punishment and you don't see anyone asking for it to be banned completely. You simply work to fix the mistakes.

I avoided an argument which we don't need to have. Death does occur needlessly in justice systems with the death penalty. It is an activity which could be banned or removed without a downside.

[Robert66]

Re. Intention: your initial statement was 'A wrongful execution is a term more appropriate to describe an act where there is a deliberate evil intention to kill an innocent person.' I merely pointed out that any execution of an innocent is a wrongful execution. This does not 'amount to
saying that intention plays no role in the moral assessment of an act'.

"Wrongful" allows for the possibility of evil and premeditated intention, but a mistake at worst could imply negligence. Since we are talking about mistakes in the justice system, and not evil and premeditated intent to harm, the term "wrongful" execution is not to be interpreted in this way.

Wrongful means unjust. Killing an innocent person is unjust, never mind intentions.

[Robert66]

Re. processes which kill: the difference, with the death penalty, is that the killings may be avoided - there is no requirement for the death penalty to exist within a justice system.

The death penalty can certainly be a requirement of the justice system, given the social consent about the appropriate punishment for every type of crime. Many people, including myself, believe that the only proportional punishment for some heinous crimes, is death. Once one learns about the stories of victims of crimes punishable with the death penalty, one gets a better sense of why any other form of punishment is not enough to serve justice.

... and many more believe that the risk of an unsound conviction, and wrongful execution, precludes the death penalty from the system of justice. And victim's stories are not limited to the murdered etc, there are victims of the justice system when there needn't be.

[Robert66]

Exactly how does the abolishment of the death penalty mean that 'the author of a heinous crime ... gets away with it'?

Because of the obvious reason that the criminal does not receive a punishment proportional to their crime. A couple of days ago a man that stabbed his mother to death in the US, spent only 17 years in prison and was released. His mother is dead, but he can enjoy life without much remorse. BTW, as soon as he was released, he went back to commit more crimes.

Here again you are speaking just as the man in the street. 'Proportional to the crime' ... 'only 17 years' ? That is not a picnic. I agree stabbing his Mother was heinous, but I cannot judge the case without all the evidence? And I cannot judge his level of remorse.

[Robert66]

Re. processes which kill: the difference, with the death penalty, is that the killings may be avoided - there is no requirement for the death penalty to exist within a justice system.

The death penalty can certainly be a requirement of the justice system, given the social consent about the appropriate punishment for every type of crime. Many people, including myself, believe that the only proportional punishment for some heinous crimes, is death. Once one learns about the stories of victims of crimes punishable with the death penalty, one gets a better sense of why any other form of punishment is not enough to serve justice.

The death penalty is not required in a system of justice, as proven by the many systems of justice which do not include the death penalty.

[Robert66]

Re. 'everyone accepts that there will be mistakes, malpractices, accidents, that will kill a lot of innocent people.' No-one should accept even a single death of an innocent, if such a death is easily avoidable.

If easy avoidable means not applying proper justice, then that "easy" comes at a very expensive price for society. And yet, everyone seems to accept the deaths of many innocent people by defective cars. No one argues how easily avoidable are those deaths if car manufacturing was banned.

I don't agree. I would say that the families and friends of people killed by defective cars are not as accepting as you think. Although what can you do but accept such a death, such as my brother's, long ago, in a car with about 200 horsepower but with poor handling and limited braking capacity.
No one needs to argue for the banning of cars. All should argue for the elimination of defects wherever they can be identified. The death penalty being a prime case.

[Count Lucanor]

I avoided an argument which we don't need to have. Death does occur needlessly in justice systems with the death penalty. It is an activity which could be banned or removed without a downside.

Just because you don't see the downside, it doesn't mean others cannot see it. Those who believe the death penalty has a place in a modern justice system will.

Wrongful means unjust. Killing an innocent person is unjust, never mind intentions.

That would include people that die because of defective cars or mistakes made in an operation room. Is it unjust? Maybe. Is it a good reason to ban these activities? Not at all.

... and many more believe that the risk of an unsound conviction, and wrongful execution, precludes the death penalty from the system of justice.

All human activities involve risks, and many of them lethal ones, even NASCAR racing or skating. Unless an activity is so risky that it will certainly produce an undesired lethal outcome, most people will find reasonable to mitigate the risks without banning the activity. In standard risk management practices, decisions are made by multiplying the impact and the probability of a risk that is materialized. In the case of unsound convictions in death penalty scenarios, the impact may be very high, but the probability very low. That's what makes sense in calculating risks, but it is more likely that those who argue against the death penalty using flawed arguments, really care very little about their soundness, they only use it as an excuse, as an activism tool to fight against the death penalty, simply because they just don't like the death penalty.

And victim's stories are not limited to the murdered etc, there are victims of the justice system when there needn't be.

Maybe if victims were to choose between receiving a lethal injection or being raped, beaten and chopped alive with an ax in front of their kids, for pure gratuitous pleasure, they would look at their stories differently.

Here again you are speaking just as the man in the street. 'Proportional to the crime' ... 'only 17 years' ? That is not a picnic. I agree stabbing his Mother was heinous, but I cannot judge the case without all the evidence? And I cannot judge his level of remorse.

If you think that being free at 39 after stabbing your mother is fine, that's OK, I mean, if that's your idea of justice, so be it. What you don't seem to realize is that other people do feel this is not justice, and that in cases of heinous crimes, they don't find justice has been served if the perpetrator does not receive the death sentence. And that is OK, too. If a mature society has developed a justice system in which due process can lead to the death penalty, it has already consented that it is ethical. Arguing that it becomes unethical because there can be unintentional mistakes, is unreasonable.

The death penalty is not required in a system of justice, as proven by the many systems of justice which do not include the death penalty.

You keep implying the notion that the norms of a legal system are somehow a natural product or the result of mathematical procedures, and thus the "requirements". But there are not such obligations, only conventions. People deliberate and decide what should be included in their justice systems. It is an option, a choice of a practice to normalize. And if they have chosen to include jail time, community service or the death penalty, it is within the possibilities of any legal system.

I don't agree. I would say that the families and friends of people killed by defective cars are not as accepting as you think. Although what can you do but accept such a death, such as my brother's, long ago, in a car with about 200 horsepower but with poor handling and limited braking capacity.
No one needs to argue for the banning of cars. All should argue for the elimination of defects wherever they can be identified. The death penalty being a prime case.

I never said people are not to be held accountable for negligence or even mistakes in good faith, and so that relatives of victims should be accepting. The only thing they should be accepting is that these mistakes can and will occur, and that the best way to prevent them, besides holding accountable the people that were responsible, is to reduce the possibility of error within reasonable limits. Not by completely banning (de-normalizing) an activity that is already normalized socially.

[Robert66]

Being a nobleman may induce feelings of superiority and hence the assumed ability to perform the role of judge upon lesser humans, but I say that regardless of the rationalising ('reduce the possibility of error within reasonable limits'; 'an activity that is ... normalized socially' etc), you are speaking as the man on the street. The mob, whether in the street or castle, call for death, having "judged" the case, and having decided that no other punishment is appropriate.

When you write

'What you don't seem to realize is that other people do feel this is not justice, and that in cases of heinous crimes, they don't find justice has been served if the perpetrator does not receive the death sentence.'

you are merely attempting a justification for the mob view. Any human, myself included, will be horrified by a crime which is heinous, and feel that the perpetrator does not deserve to live. This is reasonable. What is unreasonable is to assume the role of judge (and executioner), no matter how strong the feelings of outrage, nor how apparent the guilt of the perpetrator appears. You mention one who stabbed his mother. I met a man once who stabbed his brother to death. Should he be put to death? The mob are loudly calling for it ... Fortunately for this man, he lives in the modern world where "justice" is not performed in the street. He had stabbed his brother during his first psychotic episode.

Consider the case of Kathleen Folbigg, serving a life sentence for the murder of her 4 children, each in their infancy. She was convicted, and then appealed the conviction. A higher court rejected the appeal, and she remained in jail. She managed somehow to get a (rare) commission of inquiry into her case. That inquiry concluded that the judgment was sound, that she had no grounds for appeal. Her avenues for appeal are now exhausted, and she remains in jail . After all of that, more recent medical research findings show that indeed she had a case, that these 4 deaths most likely occurred naturally as she had said all along. The mob "sentenced" her years ago, since it was "obvious" she was guilty, and in your preferred society she would by now have been executed, since this is the "reasonable" thing to do with someone who kills her own babies. Whereas the likely reality is that we should feel immensely sad for this poor woman.

[Count Lucanor]

Being a nobleman may induce feelings of superiority and hence the assumed ability to perform the role of judge upon lesser humans, but I say that regardless of the rationalising ('reduce the possibility of error within reasonable limits'; 'an activity that is ... normalized socially' etc), you are speaking as the man on the street. The mob, whether in the street or castle, call for death, having "judged" the case, and having decided that no other punishment is appropriate.

When you write

'What you don't seem to realize is that other people do feel this is not justice, and that in cases of heinous crimes, they don't find justice has been served if the perpetrator does not receive the death sentence.'

you are merely attempting a justification for the mob view. Any human, myself included, will be horrified by a crime which is heinous, and feel that the perpetrator does not deserve to live. This is reasonable. What is unreasonable is to assume the role of judge (and executioner), no matter how strong the feelings of outrage, nor how apparent the guilt of the perpetrator appears.

You're completely wrong there and resorting to straw man fallacies.

The mob view is: let's summarily execute this person without a fair trial or any legal process, because we feel outraged.

The mob view is: let's take justice in our own hands, instead of delegating judgement to another body of reasonable unbiased, impartial men and women.

The mob view is: let's proceed with execution with any means at our hands, without consideration of the basic human dignity of the person to be executed.

The mob view is: let's judge without using a systematic body of principles of justice and legal procedures.

The mob view is: let's proceed with execution without obtaining reasonable assurance of the person being guilty of the crimes they are accused of.

My view is: let's do the opposite of the mob view.

You mention one who stabbed his mother. I met a man once who stabbed his brother to death. Should he be put to death? The mob are loudly calling for it ... Fortunately for this man, he lives in the modern world where "justice" is not performed in the street. He had stabbed his brother during his first psychotic episode.

There are legal standards that consider alleviating and aggravating circumstances to determine the severity of the crime and the severity of the punishment. I think in most developed countries those standards are fairly reasonable and I agree with many of them, so I don't expect every murder to be punished with a death sentence. I don't think a 20 year sentence for a premeditated and aggravated murder is fair.

Consider the case of Kathleen Folbigg, serving a life sentence for the murder of her 4 children, each in their infancy. She was convicted, and then appealed the conviction. A higher court rejected the appeal, and she remained in jail. She managed somehow to get a (rare) commission of inquiry into her case. That inquiry concluded that the judgment was sound, that she had no grounds for appeal. Her avenues for appeal are now exhausted, and she remains in jail . After all of that, more recent medical research findings show that indeed she had a case, that these 4 deaths most likely occurred naturally as she had said all along. The mob "sentenced" her years ago, since it was "obvious" she was guilty, and in your preferred society she would by now have been executed, since this is the "reasonable" thing to do with someone who kills her own babies. Whereas the likely reality is that we should feel immensely sad for this poor woman.

I read it was not a life sentence, but 25 years. In any case, this is not a death penalty case, and still you say this is a "mob sentence".

If it turns out she is not really guilty, I would agree her fate is deeply saddening, but it would go to my point that any injustice within the formal justice system starts with the shortcomings in the investigation and trial period, not by the sentence itself, which just follows the verdict. But I don't see you arguing for removing the court system, although perhaps that is what you are implying with the Folbigg case, which supposedly exemplifies all that is wrong with our "reasonable, preferred society".

[Robert66]

I am saying that the courts get it wrong. Not as often as the mob in the street, but sometimes they do make a mistake. Such a mistake cannot be remedied if the alleged perpetrator is dead. Therefore remove the risk of wrongful death, by removing the death sentence.

Every time the wrong person is executed, the guilty one remains free. And when the mob clamours for street justice, the office-seeker responds, seeing an opportunity to appear "tough on crime" - George W. Bush being a recent example (more than 100 executions in one year as the Governor of Texas, just prior to becoming POTUS).

[Count Lucanor]

I am saying that the courts get it wrong. Not as often as the mob in the street, but sometimes they do make a mistake. Such a mistake cannot be remedied if the alleged perpetrator is dead. Therefore remove the risk of wrongful death, by removing the death sentence.

Your point is that the risk of killing an innocent by mistake outweighs any social benefit of having a system of justice that seeks for a direct relation between the severity of the crime and the severity of the punishment. My point is that the social benefit of having a system of justice that seeks for a direct relation between the severity of the crime and the severity of the punishment, outweighs the risk of killing an innocent person by mistake, as long as the frequency/impact assessment of the risks turns out low, which is what happens.

Every time the wrong person is executed, the guilty one remains free.

That will happen even if there's no execution. So it is not to blame the execution as the reason a guilty one remains free.

And when the mob clamours for street justice, the office-seeker responds, seeing an opportunity to appear "tough on crime" - George W. Bush being a recent example (more than 100 executions in one year as the Governor of Texas, just prior to becoming POTUS).

Not a Bush fan, but I'm sure he was not who handed over the verdicts. In any case, being tough on crime does not mean neglecting due process.

[Robert66]

I think we have reached our destination, Count, and will just have to disagree about whether the death penalty's severity is warranted. My opinion is that a long sentence is sufficiently severe, and allows for the possibility of rehabilitation and rectification of mistakes.

I don't argue about due process - I accept what you have written in that regard. I do think that the political problem I referred to, whereby chest-beating politicians compete to be seen as being the toughest on crime, is of huge significance. In parts of Australia children as young as 10 are being imprisoned for such "crimes" as swearing at a police officer, because tough on crime politicians have introduced, and maintained mandatory sentencing laws, while steadfastly refusing to raise the age of criminality. This has had the added adverse effect of seeing a vastly disproportionate rate of Aboriginal Australians locked up. We are now the "incarceration nation ". So we have had decades where many advocates have called for our leaders and lawmakers to address the real issues of inequality and indeed racism rather than warehousing people in ever more prison beds, all thwarted by mainstream media who label these advocates and their supporters as bleeding hearts, and goad politicians into making the criminal justice system even more punitive against those most in need of help. Gullible voters believe the false media claims of crime increase, and vote into office the opportunistic tough guys. The prison business, especially in the context of ever increasing privatisation, is booming.

Throw the death penalty into such a scenario, and you run the risk of people dying for the crime of having dark skin, or being poor, or in the wrong place, probably all three, while already being on the police radar for spurious reasons such as showing up on a list generated by an algorithm made according to racist assumptions.

[Count Lucanor]

I think we have reached our destination, Count, and will just have to disagree about whether the death penalty's severity is warranted. My opinion is that a long sentence is sufficiently severe, and allows for the possibility of rehabilitation and rectification of mistakes.

I don't argue about due process - I accept what you have written in that regard. I do think that the political problem I referred to, whereby chest-beating politicians compete to be seen as being the toughest on crime, is of huge significance. In parts of Australia children as young as 10 are being imprisoned for such "crimes" as swearing at a police officer, because tough on crime politicians have introduced, and maintained mandatory sentencing laws, while steadfastly refusing to raise the age of criminality. This has had the added adverse effect of seeing a vastly disproportionate rate of Aboriginal Australians locked up. We are now the "incarceration nation ". So we have had decades where many advocates have called for our leaders and lawmakers to address the real issues of inequality and indeed racism rather than warehousing people in ever more prison beds, all thwarted by mainstream media who label these advocates and their supporters as bleeding hearts, and goad politicians into making the criminal justice system even more punitive against those most in need of help. Gullible voters believe the false media claims of crime increase, and vote into office the opportunistic tough guys. The prison business, especially in the context of ever increasing privatisation, is booming.

Throw the death penalty into such a scenario, and you run the risk of people dying for the crime of having dark skin, or being poor, or in the wrong place, probably all three, while already being on the police radar for spurious reasons such as showing up on a list generated by an algorithm made according to racist assumptions.

I might agree with a lot of what you say about social inequalities and class power struggles ultimately being represented in the justice system. In an unequal society, the less favored will tend to be a higher percentage of convicts. The system of criminal courts is not designed to solve the injustice of social inequality already existing in a given society, and yet criminal courts and incarceration systems are necessary. A common argument is made that when dealing with criminal conducts, "society is ultimately responsible", as if individual agency was lost in the sea of social determinations. I prefer to endorse, however, the principle of personal accountability that is part of the prevailing theory of justice, which implies that no matter how the circumstances push people to act in some way, they are ultimately free to decide for themselves how to act. Two siblings raised on the same dysfunctional and violent family will not end up doing exactly the same with their lives. And they will be held accountable for their actions.

The same argument that holds society ultimately responsible and takes the individual as a passive recipient of society's determinations, is often used to advance the myth of rehabilitation. Rehabilitation might work for some categories of crimes, but a lot of criminals are simply a lost cause and a constant danger for society.