In which I agree with Rick Perry

Two men rob a store with pistols. Each shoots someone. One of the victims dies. The robber who actually killed someone gets life; his partner is executed. Yes, it’s a weird outcome. But was the executed man really the victim of a miscarriage of justice? Doesn’t look that way to me.

Executing an innocent man is really, really horrible. So is executing someone who was too young or too mentally deficient or too crazy to be fully responsible.

Executing a man who shot someone in the course of a two-perpetrator, two-victim robbery in which one of the victims died: not so much, even if it was the other victim, shot by the other robber, who died.

I can understand outright opposition to all executions; the whole practice is a little too close to human sacrifice for comfort, and the fact that Texas so dominates the national execution statistics suggests that there’s something a little creepy about Texas.

But if you’re going to object to specific executions, try to stick to cases where the person being executed has some more claim for clemency more convincing that a bad aim.

Yes, it does seem bassackwards to execute the accomplice while the actual killer gets life in prison instead, but it’s not the sort of injustice that makes me lose much sleep.

Author: Mark Kleiman

Professor of Public Policy at the NYU Marron Institute for Urban Management and editor of the Journal of Drug Policy Analysis. Teaches about the methods of policy analysis about drug abuse control and crime control policy, working out the implications of two principles: that swift and certain sanctions don't have to be severe to be effective, and that well-designed threats usually don't have to be carried out. Books: Drugs and Drug Policy: What Everyone Needs to Know (with Jonathan Caulkins and Angela Hawken) When Brute Force Fails: How to Have Less Crime and Less Punishment (Princeton, 2009; named one of the "books of the year" by The Economist Against Excess: Drug Policy for Results (Basic, 1993) Marijuana: Costs of Abuse, Costs of Control (Greenwood, 1989) UCLA Homepage Curriculum Vitae Contact: Markarkleiman-at-gmail.com

29 thoughts on “In which I agree with Rick Perry”

  1. If executing an innocent man is really, really horrible, then why do you support it? If you support any capital punishment, then you support capital punishment of the innocent, because mistakes are unavoidable. (In saying that you support the execution of the innocent, I do not mean, of course, that you like to execute innocent people; I mean that you find it acceptable collateral damage.) With more than 130 people released from death row because of innocence since 1976, it seems likely that many innocent people have been executed, as there seems to be no way that we can have caught even close to every mistake. The Supreme Court has even allowed the states to deny the right to introduce evidence of innocence that is acquired after conviction (although, in dictum, it allowed the possibility that "a truly persuasive demonstration of 'actual innocence'" might persuade them to find a constitutional right to have such evidence considered. (Scalia and Thomas disagreed on that point.)

  2. Henry, why do you support prison sentences for the innocent? If you support any prison punishment, then you support prison punishment of the innocent, because mistakes are unavoidable.

  3. Dave, the difference between imprisoning the innocent and executing the innocent is that those who have been wrongfully imprisoned can be released and compensated for their wrongful imprisonment. That does not fully remedy the wrong done to them, but, unless we abandon our criminal justice system altogether, that is the best that we can do. Executing the innocent is not the best that we can do.

  4. Saying that you agree assumes Perry was making some sort of statement of guilt about the two men. Is there any evidence that he deeply considers the cases of execution sentences that come before him? My impression is that a jury's decision is all he needs to rubber stamp.

    I agree that both men could be considered guilty of the killing, but having execution on the menu seems to make the level of punishment appear more arbitrary (if death is fundamentally more punitive than life in prison–and I think it is).

  5. Prof. Kleiman, Help me out here. Executing an innocent is horrible. Executing anyone who shouldn't be executed is horrible. What does it mean to "lose sleep?" We can always say "tragedy happens." That doesn't seem to be the point. In executing an individual, the state is manifesting a particular authority — I don't see how it can be neutral. Not executing somebody who should be executed is also wrong. This is a positive responsibility the state has. Otherwise, it all sounds kind of random. If, in principle, there are crimes that warrant execution, then not executing is an injustice, and therefore, injurious to the nation. By the same token, executing when you shouldn't equally creates an injustice. There is a kind of default position saying the state just shouldn't be involved in executions at all. I don't think that works. The problem is that if you accept that in principle justice is served by execution in cases where it's warranted, justice will be equally damaged when it's not warranted. Because capital punishment is such a political issue in the U.S. only means that we need to pay greater attention to the principles at work here.

  6. Henry-

    "…the difference between imprisoning the innocent and executing the innocent is that those who have been wrongfully imprisoned can be released and compensated for their wrongful imprisonment…"

    In this case, the robbery happened in 1996 (giving ample opportunity for new facts to emerge), and my understanding is that there is no dispute about the central facts. The only question is whether the death penalty is merited in this case, which the courts have found. So, this is not a case where there is a risk of later-discovered evidence would change our view, and the concern you raise is not present here.

    Likewise, as others have noted, the imposition of life sentences is no light matter either. And death penalty defendants tend to get better defenses on average than other defendants. So, for every death penalty you hear of being overturned, there are many more life imprisonments, 20 year sentences, and the like that would never have been imposed had the defendant received a better defense.

    For the death penalties that have been overturned, how many are substantively "innocent"? I think you're falsely giving the impression that all of the cases are those of mistaken identity or something. I would hazard that almost all of those were due to procedural defects. Convicts that suffer from sufficient procedural irregularities are released not because it is just to that defendant, but to protect the system for other defendants.

  7. It does not follow that, "If, in principle, there are crimes that warrant execution, then not executing is an injustice, and therefore, injurious to the nation." Using the logic of the quoted statement, one could say that, if, in principle, it is wrong for any crime to be committed, then we should do away with trials and imprison anyone suspected of a crime, or even anyone who appears to have the potential to commit a crime. We do not do that because, in deciding what is an "injustice, and therefore, injurious to the nation," we take account of the full effects of our actions, not merely of what would be an injustice "in principle."

  8. Horseball, it may appear to you, and in fact to everyone, that there has been ample opportunity for new facts to emerge, and that there is no dispute about the central facts. Nevertheless, you and everyone (except God, if he or she is infallible) could be wrong. In any case, just as there is no foolproof way of distinguishing the guilty from the innocent, there is no foolproof way of distinguishing the really, really guilty from the mere guilty.

    And, no, there have been 130-plus released because they were innocent. There is a website that lists them. If a mere procedural defect is found, then a new trial is ordered. In any case, if one of the 130-plus was released because he was innocent, I've made my case that the system is not foolproof.

  9. ..if you’re going to object to specific executions, try to stick to cases where the person being executed has some more claim for clemency more convincing that a bad aim.

    He's not being executed for the attempted murder, on a moral luck argument, but as an accomplice to the other man's (successful) murder, & his own attempted murder enters at sentencing. If we executed people for good moral luck, there wouldn't be enough holes to bury them in.

  10. Mark, I would oppose your execution despite the fact that, by your acquiescence, you are an accomplice to an act of cold-blooded murder committed by agents of the State of Texas.

  11. "Executing an innocent man is really, really horrible."

    Wow. Way to make a bold, brave stand. It sure is horrible, but you know, not so much. Hey, most (or at least some) we get the right guy so it's all good.

    I am really surprised you would have this kind of attitude towards the taking of a human life. I would think you would be all too familiar with how seriously flawed the judicial system is, especially when it comes to the death penalty.

  12. Horseball: "For the death penalties that have been overturned, how many are substantively “innocent”? I think you’re falsely giving the impression that all of the cases are those of mistaken identity or something. I would hazard that almost all of those were due to procedural defects. Convicts that suffer from sufficient procedural irregularities are released not because it is just to that defendant, but to protect the system for other defendants."

    And if you'd bother to read something about the 130+ Innocence Project cases, you'd find that mistaken identity, testilying cops/forensics, and just out and out "we need to collar someone for this" is EXACTLY what goes on. These people weren't released because they later got damning evidence suppressed. They were released because THEY DIDN'T DO IT.

    It's always astonishing to me how people who will rave all year about how government can't organize a two-car parade without screwing it up suddenly find massive governmental competence everywhere when it's about killing (mostly brown and always poor) people.

  13. I still can't see what the point of executions are, aside from bloodlust. The deterrence argument seems absurd. To try and ensure fairness it ends up being really expensive.

    If you're for bloodlust, then by all means. But in that case execution almost seems compassionate. Why not truly make the punishment fit the crime – the blood fit the lust: torture, dismemberment, etc., etc.

    My hunch is that this is exactly what lies behind most death penalty supporters' thinking. If so, I wish they wouldn't be so PC and have the guts to be honest about it.

  14. Did you folks read the links? Two guys went into a store to rob it, both guys shot someone in the robbery. One victim died, one did not. The guy whose victim died cut the deal, the other guy got the death penalty.

    Not to speak for Mark, but I think his point is that, if you accept the validity of the death penalty, then striking a deal with one of two people who commit a capital crime in order to ensure that punishment is given to both but only one receives the death penalty is also valid. What isn't perfectly just, in this case, is that the accomplice rather than the shooter is receiving the death penalty–not perfectly just, but not so unjust to be unconscionable.

    If you oppose the death penalty (as I do), then you might regard any application of the death penalty as wrong (as I do). If I were an attorney for the man sentenced to death in this case, I might well have made the same argument, as in that case my loyalty would be strictly to my client's interests. As an advocate or an activist, however, I don't think the argument is so good for the cause of death penalty abolition, politically or emotionally.

    If you support the death penalty (which I do not), you might still regard the way in which it was handed out in this case to be unjust (which I do), but not so unjust as to be an argument against the death penalty.

    I think I have that parsed out right.

  15. I'm inclined to agree at least partway w/ Horseball that the notion that execution is absolutely different because it forecloses compensation is a bit facile. It's at least true that the degree of the difference declines as the time to execution & possibility of reversal increase. Also that superior representation in capital cases increases the chance of a good outcome. And it seems to me there's something fishy about standard economic & legal concepts of compensation here. It may be that imprisoned innocents can be fully compensated, in the sense that they’d have preferred the combination of wrongful imprisonment + compensation if given the choice of either that or no prison + no money. (I suspect undercompensation in this sense is more common, but never mind.) Even if that were what happened, it seems to me there's still a sense, not capturable in the usual way, in which the injury can't be redeemed, & the life lost to prison can never be recaptured, no matter how many swimming pools, big-screen TVs & fancy cars we cough up in the victim’s dotage. Some things money doesn't make right.

    This isn’t a defense of capital punishment.

    If this execution is kosher, then fine, may we all sleep the sleep of the just. But if it's not, & we're talking about killing someone, then it's a little rustic for my taste to suggest that the test of whether it's unjust enough to warrant interest should be how loudly a faintly husky & heavily bearded middle-aged man is capable of snoring through the execution, or how strongly it argues against capital punishment in general.

  16. K,

    To answer that argument, suppose a supporter of capital punishment says to you, "I believe both men should have been given the death penalty for this crime, and that it is unjust that one of these men has not been killed. What makes it unjust, however, is not that one man is executed–that part is just–but that the other is not, when justice would require that he, too, should have died. So sparing the first man's life would not remedy the injustice."

    What would you say to that?

  17. John Arkansawyer-

    According to the link, both defendants were tried. "Butler was tried and sentenced to life." I don't see anything suggesting a plea bargain.

    I will assume that the links state the case most forcefully against execution, i.e., that the convict was not "the shooter" of the victim. There can be many ways in which the non-shooter is more culpable than the shooter, e.g., was the guy who got the death penalty in any sense the instigator of the crime? Was there an express agreement beforehand to shoot the victims? Did the death penalty defendant coerce the other into the crime? Did the life sentence guy present more compelling mitigation evidence (deprivation, mental illness, low IQ, etc.)?

    I also don't understand the question that you have directed to K. I would guess that most death penalty supporters would agree in imposing the death penalty on both (in the absence of coercion, mitigation, and so on). The fact is that many people get away with murder altogether or, more rarely, like OJ Simpson escape liability altogether. I don't think any of those cases demand that we set all murderers free.

    One reason to support the death penalty, in my view, is that life in prison is not adequate punishment. I've been to Attica, and I can tell you that the inmates don't spend their days in silent contemplation of their regret at having committed crimes. They have some kind of life, even behind bars. As to the loss of freedom, etc., its not any of these guys' lifestyles would be confused with Frank Sinatra's before they went into prison. The human capacity to adjust is quite ample.

    It really struck home once when I was at the NY AG's office and I was reading a legal brief that had been prepared for another prisoner by Joel Steinberg – the Joel Steinberg who was then serving as the prisoners law clerk in Southport prison. Here was a true piece of sh*t, and here he had the chance to match wits with other lawyers, take intellectual satisfaction from a job well done, savor his victories, lament his defeats, etc. just like any other practicing lawyer. It seemed to me then that if you had sentenced him to a lifetime of that sort of existence, he wasn't suffering quite enough for my tastes. And without enough suffering, the corrections system is not likely to produce a contrite heart in hardened criminals.

    Also, while most justifications for the death penalty rely on retributivist theory, it is also quite possible to favor the death penalty on incapacitationist grounds. One way of looking at it is as the ultimate in incapacitation.

  18. What I was getting at, clumsily it seems, was that equity in sentencing cuts both ways: If it's always unjust to execute one man while sparing the other due to simple equity, then it is also unjust to spare one man while killing the other. The injustice, if equity is the only concern, can be relieved either by sparing both men or by executing both men.

    (That's all modulo what Horseball, who is more experienced in these matters than me, said about mitigating circumstances, coercion, and so on.)

    Like I said, I oppose the death penalty, but there are arguments I'd make as someone's attorney that I would not make as an activist. On the facts as I read them, this is one of them.

  19. John A Arkansawyer,

    Equity in sentencing does not cut both ways in the sense you mean. You seem to confuse justice with symmetry. For something to be unjust, it must be more than asymmetrical; it must be unjust TO someone. There must be a victim of injustice. Who is the victim if the state spares one man while killing the other? Surely not the man who is spared, and it would be a stretch to say that sparing him is unjust to the man who is killed. Not many murder or capital punishment victims go to their death shouting, "This is unjust — kill him too!"

  20. Henry,

    I think the victim is society in general. We have an expectation of reasonable equity in the law: Similar criminal acts should receive similar punishments. When that expectation is thwarted, it damages the idea of rule of law.

    (Injustice is done to the prisoner who is executed, but the remedy sought isn't "Kill him too" but "Don't kill me".)

  21. John,

    Whether the lack of equity constitutes an "injustice" to society (and whether "society" can be done an injustice), I will leave to philosophers of language.

    If an injustice is done to the prisoner solely because of the state's not killing someone else, then the prisoner would not say merely, "Don't kill me." He would say, "Don't kill me unless you kill him too." That sounds a bit absurd, doesn't it?

  22. "If an injustice is done to the prisoner solely because of the state’s not killing someone else, then the prisoner would not say merely, “Don’t kill me.” He would say, “Don’t kill me unless you kill him too.” That sounds a bit absurd, doesn’t it?"

    I'm not sure it does. Even if you felt, as a prisoner, that your death was justified (and at least some death-row prisoners appear to take that stance) it could piss you right off that your accomplice, equally or more culpable, wasn't suffering the same fate. Certainly it works that way in cases where lesser punishments are meted out.

  23. The outcome of this case is in accordance with the law. But the law is an ass.

    The death penalty is a bad idea all round, but if you're going to have it at

    all then you ought to restrict it to the cases where it can be seen to be fair.

    If you start having to make a complicated technical argument for why the

    accomplice should get the death penalty even though he didn't actually kill anyone,

    then you've blown it.

  24. “If an injustice is done to the prisoner solely because of the state’s not killing someone else, then the prisoner would not say merely, “Don’t kill me.” He would say, “Don’t kill me unless you kill him too.” That sounds a bit absurd, doesn’t it?”

    Most people would argue that you should not punish them for doing something wrong, if you are not going to punish other people who have done the same thing.

  25. There's the principle that like cases should be treated alike & unlike ones unalike, but in practice cases differ, if for no other reason than that the state's resources are limited. We allow discretion w/in limits. In any case, the state should be able to give good (noncasuistic) reasons for differences in treatment. The question here is whether this case falls w/in allowable limits. If the state argued that Robert Lee Thompson & Sammy Butler were unalike in ways that made Thompson deserving of harsher treatment, then there's a question of fact as well as justice. (Horseball identifies possibilities.) Even if there's no objection to his execution on these grounds, there's still a seperate question of how harsh the treatment should be, for like cases or unlike ones. (If I complain that Texas has killed an innocent person, it can't evade the criticism by killing all innocent persons.) I don't know, but am inclined to suspect there may be compound problems w/ Thompson's case, & given the gravity of any state killing, am at least reluctant to comment on the dormitive virtue of the execution until I do know.

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