Wednesday 30 March 2016

Three Comments On J.M. Cole Article "Monday Horror Renews Debate on (and Thirst for) Capital Punishment"

Here. I think this about covers it for now...

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(1)

“…the problem with capital punishment lies not with the clear-cut cases but rather in the many others where we simply cannot be sure that an individual is guilty.” 

This is also true in respect of at least two other types of cases. “Hate-crime” cases (where the difficulty is establishing the precise motive), and rape cases (where there are also difficulties with evidence). In order to be consistent, those who argue against the death penalty legislation should also argue against both hate-crime legislation and against attempts to increase rape convictions by lowering standards of evidence.

(2)   

"...capital punishment is the lazy way out, as it doesn’t require us to address the much more complex issues that gravitate around the matter."

That does rather assume that those "complex issues" can actually be "addressed" such that these crimes do not occur again. What evidence is there for that assumption?

My own conjecture is that it's not simply a funding/political problem, it's a knowledge problem. A report yesterday cited the Songde hospital as saying that just because Wang had sought treatment there doesn't mean he had a mental illness. The basic problem seems to be that there is so little predictive power to clinical psychology as a "science" that it is very hard to distinguish someone who may be a danger to others from someone who isn't - particularly if the person's particular condition or disorder does not remain static.

So even if the government pushed unlimited funding into these institutions, it's not necessarily true that the good people working there could prevent more such monstrous crimes from happening in the future, or even reduce the numbers. If an individual received treatment at a mental health institution and subsequently committed a murder, or some other violent crime - would the victims' family have a rightful claim to hold that institution to account for not doing their job properly? I don't think so because I don't think the science is good enough yet.

That is not a criticism of clinical psychologists or of the people who work in mental health institutions. It is simply to point out that there are limits to their professional knowledge due to the subject nature of the field and that despite their best intentions these people are not miracle workers.

Calls for capital punishment may or may not be "lazy", but acknowledging the limitations of our knowledge concerning mental health issues is not. It is both rational and necessary.

(3)

And one more thing regarding the death penalty… I don’t think it’s wise to entrust this power to the judicial wing of a government for some of the same reasons outlined in this article. However, if the mother had killed Wang on the spot in defence of her child – either with some combination of her hands, his head and the pavement, or with some kind of improvised weapon like a ball-pin hammer driven through his skull, or with a firearm… I would have absolutely no complaint or objection whatsoever.

 That is the only kind of “death penalty” I would support: that which occurs consequent to self-defence and the defence of others.

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6 comments:

  1. In France we don't have capital punishemnt, a lot of French people regrets that, for me, Death penalty are not a solution, education is the best way, I think in Taiwan they don't have a lot of mental institutions, and sometimes we see mentally ill people on the streets..it is very sad to see that. It is very sensitive subject in Taiwan. For me Taiwan it is sometimes jungle. I remember, when prisonners are executed we almost can follow that on TV like any kind of tv programs, it 's crazy...This society has changed a lot this decade..it is still safe but golden ages are over.

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  2. Sylive,

    I agree that it is worrying to see mentally ill people on the streets, but I think we have to be very careful in thinking about their treatment. Many people with mental health problems suffer from conditions like anxiety or depression that can be managed with some combination of drugs and therapy, rather than "imprisoning" them in mental health institutions. Moreover these institutions can be dangerous, abusive and horrible places - and mental health patients have their human rights too. So I don't think more mental institutions is the answer.

    I also agree that the State should not execute people. However, I do think people have the right to kill in self-defence. If you can successfully defend yourself without killing your attacker, then that is better, but I realize that the real world is indifferent to what we might prefer, and that sometimes killing in self-defence is necessary. Would you agree with that?

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  3. And one more thing regarding the death penalty… I don’t think it’s wise to entrust this power to the judicial wing of a government for some of the same reasons outlined in this article.

    That is the only kind of “death penalty” I would support: that which occurs consequent to self-defence and the defence of others.

    Although your final "closing" statement is reasonable enough by itself, it actually "opens" a few issues.

    1. The issue of "being sure"
    Exactly when is deadly force justified in the defense of others? How much evidence must there be in order to justify this "on-the-streets death penalty"? If we are not to lower standards of evidence for rape and hate crimes, what does that mean for cases of self-defense?

    2. Abuse by law-enforcement
    This source claims that 990 people were shot to death by police in 2015 in the US. Rhetorically, we might say there were 990 street-trials which led to 990 uses of the death penalty. One starts to wonder if all 990 trials were really fair ...

    Even if all 990 trials were fair there is still the principle of "The State should not execute people" ... by rhetorically connecting acceptable self-defense to the death penalty you set yourself up for a self-contradiction.

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  4. Thanks Blob, I appreciate the criticism.

    I actually think there's three things there, not two.

    First, I'm not sure what the "self-contradiction" is. In one case a court hears a terrible crime and must consider whether the defendant is guilty and perhaps also whether the sentence should be death or imprisonment. I expect the court to apply the highest standards of evidence and bear in mind the default judgement of "not guilty" should the evidence prove insufficient. In another case, a defendant is accused of murder or perhaps of voluntary manslaughter, and yet the defendant pleads not guilty on grounds of self-defence. Again, I expect the court to apply the highest standards of evidence and bear in mind the default judgement of "not guilty" should the evidence prove insufficient to the charges brought.

    Or are you trying to get at something else? That in killing my asaillant on the street I have assumed the same power of execution which I would deny to the State? If that's what you are getting at then I think there is a categorical difference: in the case of someone charged with a capital offence, the execution has not yet occurred, and may only do so on the basis of a trial by evidence whereas in the case of self defence, the "execution" has already occurred and the purpose of the trial is to assess whether the defendant acted in reasonable self-defence or not. These are two different types of case: when a court is considering whether to sentence a person to death or imprisonment, I expect the court to take its' time and apply the highest standards of evidence; when a person is fighting off a machete-wielding maniac, there is an extremely high ratio of uncertainty about the outcome of the fight to the precious few seconds available to act.

    Second, I agree that standards of evidence for ruling in favour of self-defence cannot be set too low. If a defendant incapacitates an asaillant such that he can no longer carry out an attack, but then the defendant kills him anyway... then that is no longer self-defence, but more likely voluntary manslaughter. There are difficulties. I don't think fear alone can be valid grounds on which killing someone can be justified as self-defence. You're supposed to conquer fear, and that is arguably an under-taught aspect of self-defense shooting courses in the U.S. and elsewhere. Another difficulty is in establishing whether or not the asaillant had truly been incapacitated already.

    "If we are not to lower standards of evidence for rape and hate crimes, what does that mean for cases of self-defense?"

    It means we are not to lower standards of evidence. Like I said I'm not sure what you're getting at.

    Third, the use of lethal violence by police is sometimes necessary and on the same grounds as it is for civilians: rational self-defense. On the other hand maybe if the U.S. didn't have that stupid "war on drugs", then maybe the police (a) could spend more time helping old ladies across the street and (b) would not be staffed by mentally unstable, not to say psychotic individuals, and (c) perhaps they would not have access to paramilitary, "tacticool" equipment.

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  5. My main point, which I probably did not express very clearly, is simple that the issue of self-defense appears to be more complex than execution, so using it as part of a concluding statement is a bit of a head-scratcher.


    Or are you trying to get at something else? That in killing my asailant on the street I have assumed the same power of execution which I would deny to the State?
    To clarify: The discussion of execution is a discussion of the State's ability to execute, so here I mean to focus on self-defense (with fatal consequences) as it is performed by State actors, i.e. police. Judges must be fair and well-informed in their sentencing, and yet even they have less power over life and death than the cops who know the magic phrases "I felt my life was in danger.", "I thought he had a gun", etc. Shouldn't this bother you just as much as the idea of a judge sentencing a accused rapist based on spotty evidence to prison? I assume it does bother you; then why overlook it in writing?

    And that can all be said whilst assuming the police are acting in good-faith. What about the possibility that there is actually incentive to kill? "A" is a cop. "B" is dead. "A" claims self-defense. "B", like all dead men, is silent. The court is expected to default to "not guilty". Clearly the odds are stacked against the "B's", and I bet the "A's" know this.

    >If a defendant incapacitates an asaillant such that he can no longer carry out an attack, but then the defendant kills him anyway... then that is no longer self-defence, but more likely voluntary manslaughter.
    Yes, but with regards to malicious State actors, I think the trick is to perform the initial incapacitating as negligently as possible, so as to hopefully score a kill every now and then.






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  6. "...and yet even they have less power over life and death than the cops who know the magic phrases "I felt my life was in danger.", "I thought he had a gun", etc. Shouldn't this bother you just as much as the idea of a judge sentencing a accused rapist based on spotty evidence to prison?"

    It does bother me, but in general unless there is good evidence that a killing was murder rather than self-defence, then I don't see any way around the "not guilty" default. On the specific issue of police officers committing murder and then falsely claiming self-defence and getting away with it... I think that is an institutional and cultural problem within police forces, part of which is to do with poor personnel recruitment and part of it down to the disintegration of the "rule-of-law" concept from the legislative process.

    "I assume it does bother you; then why overlook it in writing?"

    Because it didn't occur to me at the time, and possibly also because I'm supposed to keep my comments at Thinking Taiwan short.

    "Yes, but with regards to malicious State actors, I think the trick is to perform the initial incapacitating as negligently as possible, so as to hopefully score a kill every now and then."

    Like I said, this is partly a personnel recruitment and "internal" culture problem. If police forces recruit people with ASPD and other "dark triad" like personality characteristics, then innocent people are likely going to get surreptitiously murdered at some point.

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