In the last decade, I have become a convert to the Church and I have also gone through a political conversion of sorts. I have gone from the moderate left to the moderate to conservative right. Now, I would argue that leftists have left me more than I have left the left, but nevertheless I have very little in common with today’s liberal wing. But on one issue, I have not changed, and that is in my opposition to the death penalty.
Still, there are many problems with today’s death penalty decision.
I oppose the death penalty primarily for the same reason that I oppose abortion and creating embryos to extract stem cells: with the exception of cases of personal self-defense and the necessity of national defense, government-sanctioned destruction of human life is wrong and is something that should be left to God. I oppose the death penalty because it is more costly in the end (because of a necessarily massive appeals process) than just letting killers rot in jail the rest of their lives. I oppose the death penalty because it’s mostly about revenge and settling scores. I oppose the death penalty because very occasionally an innocent person receives capital punishment.
From an eternal perspective, we are sent here to learn. If somebody commits first degree murder, he can certainly learn how wrong that is in the spirit world, but couldn’t he also learn a tremendous amount while he spends the rest of his life in prison here on Earth? It makes me feel cheapened and dirty to have a government that promotes killing this person rather than allowing him to go through his own process of learning (while he is safely sequestered from society in a jail cell).
So, I am cheering for the Supreme Court decision that ended the death penalty for 18-year-olds, right? Well, not really. It’s certainly good to see that fewer people will be killed. But the Supreme Court’s reasoning shows some strange logic.
The court said that minors are not mature enough to be judged culpable for their acts. But this raises a huge inconsistency in past Supreme Court decisions, which have allowed, for example, a minor to kill an unborn child without consulting parents.
Justice Antonin Scalia pointed out in his dissent:
“In other contexts where individualized consideration is provided, we have recognized that at least some minors will be mature enough to make difficult decisions that involve moral considerations. For instance, we have struck down abortion statutes that do not allow minors deemed mature by courts to bypass parental notification provisions. See, e.g., Bellotti v. Baird, 443 U. S. 622, 643.644 (1979) (opinion of Powell, J.); Planned Parenthood of Central Mo. v. Danforth, 428 U. S. 52, 74.75 (1976). It is hard to see why this context should be any different. Whether to obtain an abortion is surely a much more complex decision for a young person than whether to kill an innocent person in cold blood.”
In an extremely alarming trend, Justice Kennedy once again relied on international law in this decision. Yes, the United States is one of the last countries to have a death penalties for minors, but in the end this is irrelevant. Count me among those who believe the Supreme Court should only consider the U.S. Constitution and not international law. As Latter-day Saints, it seems to me we should be concerned about defending the Constitution, which is increasingly under assault by a court that has apparently forgotten its mandate.
So, from a Latter-day Saint perspective, this decision is poorly reasoned and based on dangerous logic but is nevertheless a good cause.
This is an interesting topic for me. I grew up in a conservative home assuming that the death penalty was right and that it was the best way to reduce crime. I’m not so sure about either one of those anymore, especially the way they are carried out in our country. It’s usually a topic I don’t like to talk about because I’d like it to go away (outa sight, outa mind), which is a cowardly thing to do. I think I’m pretty satisfied with today’s decision, though I would agree that the reasoning isn’t acceptable.
I wonder about our attitudes regarding those who receive the death penalty (or any other heinous crime) and what they should be. I mean, if someone raped and killed my wife, could I sit on the sideline hoping he goes to hell (this is a spiritual/salvation question, not a temporal/jailtime one) and still be able to obtain salvation myself? Paul says we are nothing without charity, does that mean that no matter what, I have to hope that Christ will be merciful, even to the man who raped my wife, in order for me to obtain salvation? I think I know the answer, but that makes charity much, much more difficult than merely forgiving.
I think you have to hope that he will *merit* mercy and that then he will be given it. Perhaps you will say that we don’t merit mercy, by definition, but I think the scriptures show that there is a sense in which we must ‘merit’ mercy.
I don’t think you have to wish that Christ show mercy on the guy because you love the guy so much, any more than a parent who loves their child must hope that the child escapes the just consequence of their crimes.
I still don’t support a complete ban on the death-penalty for a number of reasons. I used to think that murder should automatically be met with the death penalty. I’ve softened a little bit on my reasoning in that situation — there are single cases of murder where I think a serious (perhaps lifetime) jail sentence could be sufficiently just to match the crime. There might even be some murders where the murderer has been unusually provoked or committed the murder in unusually stressful situations and shouldn’t even get a lifetime in prison.
But I think the death penalty should still be available as a penalty for those who are guilty of the most heinous proved crimes. The heinous crimes I am referring to usually involve mass murder or murder that has been committed in conjunction with other terrible acts such as rape or torture. Also, these should be cases where there is no doubt as to who the perpetrator of the crimes has been — where there is more than ample evidence to support the guilt of those who are being tried.
I am not sure that age alone or the maturity issue alone should be enough to keep someone from facing the death penalty. Again, in this situation one has to look at the crime that has been committed. In a sense, if the crime is sufficiently “mature” in its nature, then the person should be treated like an adult. If Eric Harris and Dylan Klebold had survived the massacre they perpetrated at Columbine, then in that case I would have fully supported a death penalty sentence for both of them. The main reason I would have supported this penalty in that case is due to the planning and preparation that took place prior to the crimes committed.
This brings up another issue. If a murder is planned and then committed, that shows that a person was thinking rationally about what they wanted to do and committed the act. Having a death penalty might be a counterweight to those who are rationally and carefully planning to kill someone. And if not, then at least the murderer is acting with a full knowledge of society’s consequences — lest the murderer rationalize and think that he/she is willing to endure prison.
I support the death penalty, but from what I can tell, my reasoning doesn’t match up with that of most supporters:
– I understand that there’s little deterrent power.
– I don’t see that society needs revenge, or retribution, or catharsis, or whatever.
I simply support capital punishment in these circumstances: When the crime is so heinous, and so demonstrates a sociopathic deficiency in the convicted, that the risk of recidivism is simply to high to allow. If you cannot conceive of being able to allow this individual to ever rejoin society because of the risk to those around him, remove him from society permanently. I do not believe in the for-real “life” sentence with no possibility of parole; if you’re never going to let him out again, there’s no need to support him in prison for seven decades. (And I do agree with you regarding the endless appeals; unless there are substantive grounds for an appeal based on new evidence or indications of malfeasance in the original trial, we don’t need to try an individual seven times to be sure he’s really, really guilty, simply because the crime in question is a capital one.)
This would mean that the man who kills his wife in a drunken rage, or even the man who kills his wife as a calculated ploy to inherit her fortune, are not candidates for capital punishment. The drug addict who panics and shoots an unexpected homeowner during a robbery is not a candidate for capital punishment.
But on the other hand, a serial rapist who never killed anyone would be a candidate for capital punishment in my book, if past history and psychological examination indicate that this person can not likely re-enter society safely.
Years ago I read an article about an elderly Israeli man who was in his late eighties or early nineties. He murdered his elderly wife. When the authorities showed up he taunted them by saying: “What are you going to do, put me in prison for life?” Israel doesn’t have a death penalty and obviously this man was cognizant of that fact and had decided he only had a few years to live anyway. By the way, I have at times hunted for that article and I can no longer find it. But I remember thinking at the time that it was a great reason, in and of itself, to keep the death penalty as a legal possibility.
I don’t support the death penalty. I think to begin any discussion on the death penalty you have to prelude with the purposes of a criminal justice system. For me the reason we have the system is not to mete out some theoretical justice in any sense b/c this is impossible for mortals to do. I think God is the only one who can deal out justice or God through a called prophet. Thus, for me the criminal system exists to protect the citizens. From this vantage point there is simply no need for a death penalty. We can adequately protect citizens through the use of prison terms for life.
Add to that reasoning the fact that the system has convicted innocent people and put them to death on occasion and that I believe life is so sacred as to be in the hands of God and the death penalty appears cavlier and improper. I have never seen a study that legitmately shows the death penalty to have any statistically sugnificant deterrent effect (this is of course an invite).
I also don’t find Scalia’s reasoning persuasive. He points to abortion as another example of when minors are thought responsible in life or death situations. From a Mormonism standpoint we, unlike many Evangelicals, do not consider abortion murder and so the analysis falls slightly short for me and is less persuasive. I think Scalia is obvioulsy penning his argument for the benefit of the Christian Right who abhor abortion no matter the circumstances and sing the death penalty’s praises whenever possible.
Also, as a global Church I think we should be excited, on a certain level at least, by the US looking to international law. The more unanimity there is globally the easier it is for the missionary work to flourish and the Church to grow (assuming unanimity in the right direction).
H L Rogers wrote:
“Thus, for me the criminal system exists to protect the citizens.“
Who is the criminal system protecting from Martha Stewart, and why will it stop protecting them this weekend?
“Add to that reasoning the fact that the system has convicted innocent people and put them to death“
For which executionee do you think there is the strongest case for innocence?
“I also don’t find Scalia’s reasoning persuasive. He points to abortion as another example of when minors are thought responsible in life or death situations. From a Mormonism standpoint we, unlike many Evangelicals, do not consider abortion murder“
This seems like a red herring to me. I see nowhere in Scalia’s dissent that he claims abortion is murder or even that it is the “taking of a life”. He says that the decision whether or not to have an abortion is at least as complex as the decision whether or not to murder someone in cold blood, a claim with which I would think that even pro-choicers could agree.
1. The criminal system is protecting those who rely on the financial markets (mainly all of us) that operate with free flow of open information and discourages the trading of inside information (this is a descriptive phrase and is not normative–whether or not we need protecting from Martha, or inside information is bad for investors generally are different debates). Sentences, from a protect the citizens framework, are timed to cost a rational actor a sufficient amount so that it is not worth it for the rational actor to take the same actions, for which he or she was punished, again. In Martha’s case this certainly cost her enough that if she is a rational actor she won’t do it again.
2. I did not have a particular case in mind.
3. I cannot speak for por-choicers, however, Scalia is using one of his favorite tactics, which I think is quite effective. His argument centers around “difficult decisions that involve moral considerations.” His intended audience will see the implicit tie he is making between abortion and the death penalty. Implicitly he is saying: if we allow minors to kill babies without even their parent’s consent why shouldn’t we be able to execute minors who kill other people. His argument thus relies on tieing killing to killing. I don’t find the reasoning persuasive. If his argument were merely about difficult moral choices there are others he could have used. He appears to use the extremely charged abortion debate for desired effect.
When poor Dukakis was blindsided in the 1988 debate with a question on whether his position against the death penalty could withstand the rape of his wife, he should have attacked the question as irrelevant: of course he would have wanted revenge, but we don’t base our laws and policies on the passions stirred up at times of crisis, but on reasoned deliberation.
When we find out to what extent prosecutors sometimes go in order to defend verdicts on cases that eventually prove to be filled with holes and inconsistencies, when we see the number of death row inmates who have been exonerated by DNA evidence, I don’t see any justification for the death penalty, to say nothing of the money the states would save by its abolition.
Exonerations based on DNA evidence are a good argument for more DNA evidence, but not for death penalty abolition. Furthermore, shouldn’t the increased availability of DNA evidence strengthen the argument for the death penalty?
All cases have holes and inconsistencies. We still convict and punish people.
If the data critiqued in this 2002 article by Ian Murray from the Statistical Assessment Service (stats.org) ends up being accurate then there may be something to the deterrent theory of the death penalty:
Murry is personally opposed to the death penalty for religious reasons. The article is fairly even handed and he spots some weakness in the study’s methodology. I lean toward pro-death penalty myself, but I look forward to further studies with refined methodology.
H L Rogers writes:
“Sentences, from a protect the citizens framework, are timed to cost a rational actor a sufficient amount so that it is not worth it for the rational actor to take the same actions, for which he or she was punished, again.“
This sounds like a deterrence rationale, not a protection-based rationale. Martha–and, for that matter, the millions of people who have been following her case–are now aware that committing this crime will lead to punishment, so it won’t be worth it for them to commit the crimes.
“I did not have a particular case in mind.“
That’s a pity. I bought In Spite of Innocence at a 90%-off sale at the BYU Bookstore, and I was hoping you could lead me to the strongest case so that I don’t have to plow through the weaker ones (e.g., Joe Hill).
1. For my purposes the protection based and deterrence based rationales are closely related. I use a deterrence scheme as part of my overall protection scheme rationale. If we want to protect citizens we need deter wrong-doers or if there is no penalty high enough to deter certain actors (either b/c they are not rational or the benefit is so high we cannot manufacture an equally high cost) we must remove them from society for the long haul.
2. Sorry I can’t help you out with In Spite of Innocence.
I’m surprised no one has brought up earlier Church statements on the death penalty. Granted the Church hasn’t made any for a while but if I recall correctly Elder McConkie made a statement that was allegedly by direction of the 1st Presidency in support of the death penalty. I say allegedly b/c I have never seen this statement in an official publication and have some doubts about its authenticity.
HL Rogers said:
“From a Mormonism standpoint we, unlike many Evangelicals, do not consider abortion murder…”
The True To the Faith entry for abortion states:
“In today’s society, abortion has become a common practice, defended by deceptive arguments. If you face questions about this matter, you can be secure in following the revealed will of the Lord. Latter-day prophets have denounced abortion, referring to the Lord’s declaration, ‘Thou shalt not … kill, nor do anything like unto it’ (D&C 59:6). Their counsel on the matter is clear: Members of The Church of Jesus Christ of Latter-day Saints must not submit to, perform, encourage, pay for, or arrange for an abortion. If you encourage an abortion in any way, you may be subject to Church discipline.”
It then goes on to describes several situations in which abortion may be justified, which is addressed by Dallin H. Oaks.
Dallin H. Oaks in a talk entitled “Weightier Matters” said:
Some Latter-day Saints say they deplore abortion, but they give these exceptional circumstances as a basis for their pro-choice position that the law should allow abortion on demand in all circumstances. Such persons should face the reality that the circumstances described in these three exceptions are extremely rare. For example, conception by incest or rape—the circumstance most commonly cited by those who use exceptions to argue for abortion on demand—is involved in only a tiny minority of abortions. More than 95 percent of the millions of abortions performed each year extinguish the life of a fetus conceived by consensual relations. Thus the effect in over 95 percent of abortions is not to vindicate choice but to avoid its consequences. Using arguments of ‘choice’ to try to justify altering the consequences of choice is a classic case of omitting what the Savior called “the weightier matters of the law.â€
Russell M. Nelson in a talk called “Reverence for Life” said:
“Scripture declares that the ‘life of the flesh is in the blood.’ (Lev. 17:11.) Abortion sheds that innocent blood.”
I do not speak for other Latter-day Saints, but for me, personally, I believe that most abortion-on-demand is murder.
I agree with you Peggy as long as you define abortion on demand the same way I do. Regardless, there are excpetions were abortion is allowed. Those exceptions may be few but they certainly exist. This separates us quite widely from most evangelical views as well as the current Republican party platform, both of which do not allow for abortion under any circumstances. Evangelicals appear to view abortion under any circumstances as murder, very differnet from Mormonism’s view. Thus, those pesky evangelicals who demonstrate outside temple square during general conference with their terrible anti-abortion pamphlets, which I find obscene.
Peggy Snow Cahill,
I’ve shared these experiences before in the ‘Nacle but I’ll just say them again. I used to feel just like you about “most abortion-on-demand is murder” until some experiences I had on my mission that seemed to indicate otherwise. As a district leader I interviewed a woman for baptism. During the course of the interview I had a strong impression that I should ask her if she had ever had an abortion. Her answer: “Yes.” I then felt another strong impression that I should ask her if she had had more than one abortion.” Her answer: “Yes.” I asked her how many and honestly I can’t remember the specific answer — but it wasn’t simply “two”. But during the course of that interview the Spirit also witnessed to me that this woman was forgiven and that she would be baptized. I did not have authority to give that permission and had to refer her on to the mission president, who did in fact authorize the baptism (but only after her husband was taught discussions as well — they were both baptized soon thereafter). The spiritual feeling I had during that interview was positively joyous, a total affirmation that this woman was worthy and acceptable to the Lord. That lack of spiritual reservation on the matter surprised me. I really felt strongly that the Spirit and the Lord were overjoyed with this woman and the steps she was taking in her life and it made me feel really happy too.
Later a zone leader who was a close friend of mine interviewed a man who wanted to be baptized but had killed people. In fact, he introduced me to this man and I watched the man teach a martial arts class in his studio. The mission field (at least during this time) handled the crime of (potential) murder entirely differently and more seriously than anything else I had seen or heard of before in the mission. The man was required to write a letter to the First Presidency describing specifically what he had done and only the First Presidency could authorize whether or not the man was to be baptized. The answer came back that the man was not to be baptized but that he was to be encouraged to continue to attend Church meetings.
I walked away from these experiences with a very strong sense that abortion and murder are usually not the same thing. As I see it, while abortion can be a very serious sin, it is much easier (spiritually and bureaucratically) for multiple abortions to be forgiven than it is for killing a person. Consequently, I would hesitate to equate abortion with murder unless it is a very late-term abortion.
Those are personal thoughts and experiences. Perhaps for that reason another person could dismiss them. Nevertheless, I take the principle I learned from those experiences seriously. One general authorities or another may have diminished the importance of the exceptions and stated that the number of women who fall under those exceptions is insignificant. But still, the Church is in fact saying that elective abortions for those exceptions could possibly be a moral as well as a legal choice. I understand that to mean that a girl or woman in one of those exceptional situations who chose an elective abortion would not suffer an iota in her worthiness or standing in the Church.
Too often those exceptions are diminished entirely or are dissolved in a collective anti-abortion shout. I really feel that the Church’s position should not be dissolved into something stricter than it already is.
Interestingly too, since the Church states that some women (in exceptional situations) should be permitted to have elective abortions performed, we should permit that at least some doctors receive professional training in performing abortion procedures. We wouldn’t want some feckless amateur performing the necessary procedure would we?
I noticed in a book I received that the First Presidency offered four reasons a woman might receive an elective abortion: a) rape; b) incest; c) the pregnancy is an unusually serious risk to the life of the mother and d) a malformed baby will not be born alive. I don’t have the little booklet with me but I can post a quote later if it is desired. Still, it seems to me that these exceptions could add up to a fairly significant group of women.
Sorry this is so long.
Holy crap. I thought this thread was about the death penalty. How did it morph into a abortion discussion? LOL.
gst —
“Exonerations based on DNA evidence are a good argument for more DNA evidence, but not for death penalty abolition.”
Only if you have a very cavalier attitude about murdering the innocent in the name of punishing the guilty. In war, a certain amount of collateral damage is unavoidable. In a criminal justice system there is no need to tolerate it where it is easily preventable.
All right. Since Danithew is making his abortion argument once again, I will make the same reply I always do:
The view that abortion is in reality murder is consistent with the church’s differing treatment of the sinfulness of abortion and other killings, provided (1) that the sinfulness of an act is partly dependent on one’s moral responsibility for it and (2) society inculcates the view that abortion is NOT murder and is of minor consequence. (1) It is and (2) it does.
H.L. Rogers:
Your reasons for dismissing Scalia’s abortion argument are pretty flimsy. He is not implying that abortion is obviously murder. Quite the contrary. He’s implying that whether abortion is murder or not is a difficult moral question that requires judgment and maturity to think through.
This is what he’s saying:
(1) whether or not to get an abortion is a complicated moral and personal question that requires judgment and maturity.
(2) whether or not to kill an innocent in cold blood is not.
(3) The Supreme Court, hallowed be its name, believes that teenagers are mature enough to responsibly make decisions about abortion without parental guidance.
(4) but the Supreme Court, to it be all glory, just held that teenagers are not mature enough to decide not to kill people.
Huh? says Scalia.
The point, Bill, is that once you start using DNA evidence you no longer have those worries about cavalierly killing the innocent. Those folks who can be exonerated by DNA evidence have been.
Adam, your confidence is a little terrifying
Adam, don’t worry … I am tiring of trotting out the same old arguments as well and will probably let many things go by in the future.
I read the argument you made and it isn’t very clear. I’m not being condescending or trying to annoy you. Let’s say a person has an abortion that is immoral from the Church’s perspective, an abortion that does not fall under the exceptional situations that are always stated. Does that type of abortion, from your perspective, always equal murder?
I’m distinguishing between two different senses of the word ‘sin,’ Danithew. Sin objectively speaking is things that are wrong, no matter whether the people involved in the practice know they’re doing wrong. Subjective sin is knowingly doing wrong.
My view is that abortion is (probably) objectively murder, but that in our present culture it isn’t quite murder, subjectively (still subjective sin, though).
Let me give you an analogy. Suppose I believed that the death penalty was wrong. Suppose I believed it was murder. Suppose I had two people: one was an American of normal intelligence and upbringing who shot and killed someone for their money. The other was, say, from a country where they still killed people for minor crimes. He worked as an executioner, though other work was available, because the pay was better. Which committed the greater sin? With whom am I going to be more concerned?
If I choose the robber-killer, is that tantamount to saying that I no longer believe the death penalty is wrongful taking of human life? I believe it isn’t tantamount.
So one can say that abortion is the wrongful killing of innocent life–murder, in fact–without thinking the abortive daughters of a culture that practices, defends, and aggrandizes abortion are murderers, morally speaking.
The pay for executioners is not that good. And the costs are high. In fact, whether you think the death penalty for the innocent or the guilty is murder or not, it is the responsibility of the state (and by extension, all members of society) and not the executioner. Nevertheless many executioners have had qualms about what they are doing:
http://www.villagevoice.com/news/0504,gonnerman,60415,5.html
http://www.geocities.com/fancybroccoli/PrisonArticles/NYTimes_In_the_Busiest_Death_Chamber.htm
Adam-
Your relativistic approach to murder is very interesting. But it seems the scriptures only support sin as knowingly doing something wrong. Where there is no law there is no sin and scriptures like it appear to imply that knowledge is necessary for sin. Baptism at age 8 and the purpose of the mortal experiment all support this interpretation.
I think you are correct about Scalia’s opinion to a point. However, by using abortion Scalia is inserting a very loaded example in order to appeal to a certain audience. This is no surprise as most justices use this technique to some degree and Scalia does it better than most. If you take out the loaded element of his reasoning HIS opinion becomes flimsy. Is the Supreme Court claiming that minors are not mature enough to decide not to kill, is Scalia even claiming this?
HL Rogers:
If you want me to use a different word other than sin, fine, I don’t care. The point still holds.
As for Scalia, I am unable to follow you. Why is it that his abortion argument doesn’t make any sense once you remove the idea that abortion is murder? As I’ve pointed out, his argument seems to be premised on the idea that abortion isn’t obviously murder.
danithew-
I am not saying that a woman who has a needless abortion is a murderer. She generally is not the one who sheds innocent blood. It is the abortionist who takes the life. So, it is not surprising to me that the woman you mentioned was forgiven for her part in it. I honestly feel more for the women than for the babies, because they are generally duped into believing that somehow magically they will be made “unpregnant” yet after it is over they begin to realize that they allowed their babies to be killed. The psychological damage to the women is terrible. And the so-called “counselors” at the abortion clinics are paid on commission, and are more salesmen than genuine counselors. And afterward, the women who ache terribly are told to shut up, they made their choice, now they have to live with it. Lots of websites out now if you want to know more of their stories. I am not judging any particular women, believe me. I just think that it needs to not be legal. All of those Church-allowed exceptions were always legal!
Peggy Snow Cahill,
Interesting idea that the abortionist doctor is more responsible than the woman is for the abortion. I’ve considered that possibility before. I certainly think that if abortion were illegal, the best way to enforce the law would be to go after the doctors rather than the women who pay for abortions.
I didn’t mean to say that Church-allowed exceptions were illegal … merely suggesting that the Church is actually saying these exceptions should be legal or should continue be legal. Otherwise, how would these exceptions be possible?
Adam, I’m sorry you’re unable to follow my argument. It would have been fun to debate it with you, oh well.
Scalia characterizes the court has having said that minors are mature enough to decide to have abortions but not mature enough to decide not to kill (a much less complex decision). This is a mischaracterization of the court’s decisions. The court’s abortion decisions rest not on the maturity of minors but on the constitutional right to privacy, that the court has extended to minors. It has little to do with the ability to make complex decisions but rather whether minors have a constitutional right to privacy (this is a descriptive statement, obviously from a normative position most on this blog would disagree, as the author would, but that is a different issue). The court did not decide that minors are not mature enough to decide not to kill. Rather, Kennedy reasoned that brain development in a minor is such that life and eath decisions at that age take on a different meaning than when the brain has developed further. True, this part could be cast as a maturity argument, though not in a conventional sense but in the aspect of technical neuro-psychology. Scalia, in one sense is making a one to one comparison that is simply not supported by the court. Rather, what Scalia does is make an implicit argument: look how stupid the majority of the court is who is on the other side from me. They say minors are smart enough to kill babies but not smart enough not to kill adults. In one sense his explicit argument is: we allow minors to make the difficult decision of killing babies (a premeditated, drawn-out decision process) but not to kill adults, which often happens very quickly. To argue that Scalia is not making a kill to kill analogy you would have to competely strip him of his politics and read this opinion as if he had never penned an abortion minority opinion. Scalia is not raising the abortion issue as if the court made a rational decision in the earlier cases without a heavy dose of irony. To miss that irony is to do Scalia injustice. He has obviously thought carefully about this usage and intentionaly creates a kill to kill analogy in order to play to what he believes is a majority of Americans who oppose abortion on some ground. Play to those emotions he seems to believe will convince others of the innaccuracy of the current majority opinion. However, if you believe that abortion in many cases is not murder (objective or otherwise) than the argument loses much of its steam. Privacy is different than maturity and killing is different in class than abortion in many cases and Scalia’s analogy falls flat. To deny the kill to kill analogy is to deny politics, yet politics is most often exactly what the court is playing at. Don’t forget Bush v. Gore where both sides of the court reasoned from the opposite side of the law from where they usually sit in order to support their respective candidates.
Okay, set the death penalty aside. While it is a good topic for discussion, we are not seeing this ruling as it truly is. Justice Kennedy, as Geoff B points out, is using international law and a poll to establish his reasoning. Since when does the Supreme Court use poll or consider international law when deciding cases?
In this action I see a court of runaway judges that use litmus tests instead of law to decide judgements of the highest order. THIS IS WRONG. Kennedy is a renegade that must be stopped before the court begins to rule on any kind of topic uses his logic. The Supreme court just a few years ago ruled that the death penalty for minors was justifiable. They have now overturned one of their own ruling in this action, using the wrong input to make the decision.
When will we wake up to the ramifications that these types of rulings (and I am not talking death penalty, I’m talking procedural process) make. Are we becoming a socialist union?
Copper,
I think you might be a just a little alarmist. There is no major shift here. The court contradicts in own rulings about as often as it rules. The court also usually follows public opinion in most of it’s decisions in order to preserve its political capital. While the use of international law by Kennedy is interesting it is by no means novel as international law has sprung up in Supreme Court decisions for the better part of the last 60 years, although it is gaining in frequency. However, I don’t think this is necessarily a bad thing. Especially as Church members, more uniformity across the globe on certain legal issues will make Church growth easier. Plus, I think all nations have a lot to learn from other countries and their legal systems.
And we are pretty far from a socilaist union. We are in fact that last first world country to ban the death penalty for minors. And the court is still a conservative court, which will probably only become more conservative in the next year.
should read “its own rulings”
HL – you can accuse me of being an alarmist, I tend to thinnk of myself as a protectionist.
I like Justice Scalia’s dissent language:
   ”In urging approval of a constitution that gave life-tenured judges the power to nullify laws enacted by the people’s representatives, Alexander Hamilton assured the citizens of New York that there was little risk in this, since “[t]he judiciary … ha[s] neither FORCE nor WILL but merely judgment.†The Federalist No. 78, p. 465 (C. Rossiter ed. 1961). But Hamilton had in mind a traditional judiciary, “bound down by strict rules and precedents which serve to define and point out their duty in every particular case that comes before them.†Id., at 471. Bound down, indeed. What a mockery today’s opinion makes of Hamilton’s expectation, announcing the Court’s conclusion that the meaning of our Constitution has changed over the past 15 years–not, mind you, that this Court’s decision 15 years ago was wrong, but that the Constitution has changed. The Court reaches this implausible result by purporting to advert, not to the original meaning of the Eighth Amendment, but to “the evolving standards of decency,†ante, at 6 (internal quotation marks omitted), of our national society. It then finds, on the flimsiest of grounds, that a national consensus which could not be perceived in our people’s laws barely 15 years ago now solidly exists. Worse still, the Court says in so many words that what our people’s laws say about the issue does not, in the last analysis, matter: “[I]n the end our own judgment will be brought to bear on the question of the acceptability of the death penalty under the Eighth Amendment.†Ante, at 9 (internal quotation marks omitted). The Court thus proclaims itself sole arbiter of our Nation’s moral standards–and in the course of discharging that awesome responsibility purports to take guidance from the views of foreign courts and legislatures. Because I do not believe that the meaning of our Eighth Amendment, any more than the meaning of other provisions of our Constitution, should be determined by the subjective views of five Members of this Court and like-minded foreigners, I dissent.”
In my opinion Scalia and others make a mistake when they create any linkage at all between the abortion and death penalty issues. Each of these issues is controversial, complicated and problematic enough on its own. In my opinion, lumping them together or mentioning one in the same breath as another will further muddy the arguments and logic that are already being used. These issues are significant enough to stand alone and be debated on their own merits/problems.
Bill, as a death penalty supporter, I admit that as long as there is a death penalty, there is a possibility of executing the innocent. That doesn’t mean I’m cavalier about it. Why suppose that people who are in favor of executing heinous murderers are callous to the idea of executing the innocent? Do you know death penalty supporters who oppose the use of DNA evidence?
Furthermore, I don’t understand your point about underpaid and uneasy executioners. Would well-paid and happy executioners somehow answer your objections to the death penalty? Are you surprised that people whose job requires them to kill on behalf of the state sometimes have qualms?
I hasten to add that I have yet to see evidence that we have actually executed an innocent man in our modern era. Having had Larry Marshall as a professor in law school, I’m quite familiar with the prominent cases of wrongful death penalty conviction. And I support his work on behalf of the wrongfully convicted. But where are these wrongfully executed I hear so much about?
Cooper,
I thought for purposes of reference to Scalia alamrist and protectionust were the same. 🙂
Scalia is being a little disingenious in quotes such as you have provided. Granted, he certainly does not like the newly emerging national consensus approach that Kennedey has begun to favor he is not shy about interpetting the constitution in a different way than many of his collegues and in ways very different from the founding fathers and other earlier supreme court justices. If you need any proof of this look to his Smith decision.
HL – I am not looking for proof. I just would like to know that 25 years down the road, while not moving locales, one morning I wake up to find I live in France. 😉
Hey, I can think of worst places to wake up–like communist China. But I suppose France would simply be on the road to China, right. Well we could always move to northern Montana and live in a bunker. hahaha.
HL:
I think you are unjustifiably cynical in saying that the supreme court reverses itself as often as it rules, generally follows public opinion, and usually simply plays at politics.
Because the first is demonstrably false, I take it as hyperbole. There are reversals, but they are fairly rare. The second and third seem to conflict. If the conservative and liberal wings of the court are simply playing to their ideological chronies, they are not following “public opinion” and vice versa.
Of course, it is true that the Supreme Court has inserted itself into politics in some unfortunate ways. No doubt the justices’ differing views of judicial review and the nature of the constitution itself (living and evolving document? text with a fixed and discernable meaning?) both flow from and reinforce politics in the court. Some of this is probably inevitable.
But why should we accept the current state of affairs? To the extent that the court settles hotly contested public policy questions–questions that were once left to the political process to sort out–it has become a most tyrranical institution. It is truly sad that a majority of five philosopher-king-tyrants now rules our great republic, atleast as far as certain issues are concerned.
I also disagree that reliance on foreign law is not remarkable. It has happened before, but the story is not so simple. Federal courts relied on foreign law as part of the federal common-law before Erie. Since then, it has been rare. The use of foreign law is particularly troubling in the context of soft con-law. For example, Lawrence v. Texas. The test in that case required the court to consider American history and tradition. Because Bowers (the case Lawrence reversed) made clear that history and tradition would not yield the result the majority wanted, the majority ignored the test. And what did it come up with instead? It considered what a few countries in western Europe have done in the past few decades. There is no argument here–no attempt to dress it up like legal analysis. They simply appeal to an authority of extremely dubious status to justify choosing sides in a political contest.
It may be quaint, but I take popular sovereignty seriously. Foreign law-making institutions are not accountable to the people of the United States. Thus, the law such institutions generate should carry no authoritative weight here. (Of course, foreign law may be a source of good ideas, but this is uncontroversial; this is clearly not what is happening in the cases at issue.)
Finally, I do not follow your point about uniformity. How will the church’s efforts abroad be helped by the US SCT citing foreign law for the basis of its rulings? I can see how the church would benefit from the uniform adoption of robust religious freedom laws where none currently exist. But what does the reliance (or non-reliance) on foreign law in US courts have to do with what happens in the rest of the world?
Shawn,
1. Hyperbole, certainly. What would my rhetorical flourishes be without a little exagerration for good effect. Yet the Court overturning itself is certainly not “rare”. The history of the Supreme Court is largely one of turning trends from one legal philosophy and precedent to another opposing the first. True the Court admitting that it is reversing itself is fairly rare, however, the court functionally reversing itself is quite common. Smith was a sharp reversal from several decades of preceding case law. The history of Lochner to Roe v. Wade is basically the history of the court embracing a legal philosophy, completely disregarding it and then returning to it again. Lawrence is a reversal of Bowers and so on. Bakke to Michigan is a set of precedents and opposing precedents.
2. The Court is both split politically and roughly in line (in its decisions) with public opinion. The Court is often loosley split between conservative and liberal much like the country and decides its cases that way. Parker has written extensively on the subject and did a study (though I can’t remember where it was published now, so discount accordingly) where he took major decisions by the court and matched them to opinion polls at the time. Most cases were decided loosely within the parameters of the polls, while most that did not fall within the polls were reversed rather quickly (granted I believe his study took in cases only the 60s to the present, so the phenomenon is admittedly modern–though I think this follows the modern trend of popular government). As a political institution, which the court necessarily is as it is comprised of political appointees, the court only has so much politcal capital at its hands. Thus decisions like Brown and Roe, which are often at the forefront of “progressive” politics are often followed by several re-trenching decisions. Brown was followed by cases that eventually obliterated desegregation and Roe was followed by Casey and others (these statements are descriptive not normative by the way–I don’t think Roe was progressive in any way). But aside from direct cases following on point, several unrelated cases after these opinions have been seen as retrenching by commentators of the court. Granted much of my cycnicism here is based on the work of Parker and other functional theory type con law scholars (read neo-realism).
3. As far as international law. I don’t think Erie is such a clear demarkation point. Granted Erie turned the courts toward state law in substantive matters but this law itself had often borrowed from supposed fed common law etc. Granted I’m no international expert and studied it very little but while I think there is a definite trend to using more international law I see its use throughout several periods in court history.
4. Uniformity is a stretch I will admit. But it is basically a free market argument. Free markets work best been regulation is uniform. This lowers costs stemming from different knowledge set requirements as well as loss in time-value. Missionary work could be sped up and money saved (thus allowing those resources to go elsewhere) if legal regimes were more uniform. I think of all the unique work the missionary department had to do for me to get a visa to Brasil for my mission. Now, I put this decision in the context of an emerging global trend toward uniformity that is being pushed by the emerging global markets. I know, I know a bit of a stretch but my thinking on this issue will certainly be in the minority. I think federalism is basically useless (and has been for about 100 years) and that global government structures (such as the UN) could be put to much better use if the US and other majors players invested more effort into them. I know, a group of militia men in a bunker in Montana are putting me on a list of trators to the flag and constitution as you read this. Oh well.
I do think as members of the Church we should be thinking more globally than nationally. The Church has become/is becoming a global church. You really don’t hear talks on the constitution and founding fathers like you used. True around July 4th they will speak at civic functions but nothing like what we saw in the 40s-70s. I don’t think the Church is as much concerned about “defending the constitution” as it is now with defending the family and participating in a global arena.
HL, regardless of the history of using international law, I think you are losing sight of the purpose of the Constitution and the purpose of the foundation of the United States. The founding fathers were very clear that the United States was expected to be something unique — a “city on a hill.” The Constitution was the first of its kind and was expected to be something different and an example for others. Many of the constitutions in democratic countries are today based at least in part on the US consitution. The EU constitution, by contrast, is not an enforcable constitution but instead a laundry list of wishes (full employment, children’s rights, etc, etc). The purpose of the Surpreme Court is to enforce this special, unique document, the US Constitution. When the Supreme Court loses sight of its mandate, as it has done in this decision, it is setting an extremely dangerous precedent. Let me give you a few examples.
Let’s say the Europeans decide to expand euthanasia laws and decide that all mentally retarded children can be killed by doctors in “mercy killings” (we are not that far away from this, by the way, if you look at recent laws in Holland). Let’s say that the Chinese, Russians and Japanese adopt this as well. Again, not too far-fetched. So, all of the sudden, there is an international mandate for killing mentally retarded children. There will certainly be a movement in the US to follow the European example. But the issue has nothing to do with what the rest of the world decides is suddenly “right.” The issue is what the US Constitution, a document with very specific limits and rights, actually says. And I see nothing in the US Constitution allowing for mercy killings (or for a “right to privacy,” for that matter).
We are on an extremely dangerous path if we based our laws on international opinion. Joseph Smith warned that it would be up to the Saints to protect the Constitution. Part of this protection is to prevent us being swallowed up by what the “world” thinks is right rather than what by God knows is right and has already laid out in our Constitution.
Geoff B.
I sympathize with your view of the US and COnstiution. I would submit though this is the view of what Mormons would like the constitution and the US to be. Bare with me for just a momoent. I think the constitution is great, parts are inspired, etc. However, it was not so unique as you claim. It was the next step in an evolving history of political systems. Granted it was a major step and one that has been emulated b/c of its strengths. You also want to make the COnstitution out to be a rigid document that says explicit things that must be followed. While I sympathize with this desire the Court has never functionally viewed the constitution this way. It has been interpretted since the day the court was formed. Often strict interpretation is thrown around, I think this is really a desire for the Constitution to be interpeetted the way “we” think is right. What is strict interpetation after all. Clauses in the constitution have been interpetted in very opposing ways for the entire history of the court. I think a strict interpetation of the constitution would most likely be a good thing but what would that even look like. I have no idea b/c the constitution has been interpetted so many times. (granted this is a spectrum, some things are far clearer within the constitution than others and some court decisions stretch the rational meaning more than others but then your argument rests merely in the margins).
Your euthanasia example is interesting but we do live in a democracy after all where the will of the people will rule. The constitution has always been a document within a democracy. It has been insulated from the democratic whims of the people with a court and a rigorous amendment process but it has not been removed from that process. Because we live in a democracy our laws have always been based on opinion in some way (granted some laws more than others depending on historical trends and the pearticular process attached to different legal regimes within the US).
As far as the purpose of the constitution. I’m not sure its purpose was anything more than to establish the best government possible. I see no contradiction from this purpose for the courts to continue fashioning the best society possible. Sure, certain opinions go ways I wish they wouldn’t like Roe and Smith but I think this gets back to the thread on whether our society is getting worse or better and the answer being : yes. I don’t think we want to go back to constitutional law of the 1800s–progress has been made toward a better government and a better society.
HL:
Your analysis of supreme court self-reversal, public opinion following, political capital-spending, etc. refers almost exclusively to the soft con-law political non-jurisprudence about which I am concerned. My point is not that such observations are or are not correct. My point is that the court’s foray into the area is largely illegitimate. Indeed the fact that certain lines of jurisprudence are subject to analysis in political rather than legal terms should tell us something about how far from its institutional competence the court has strayed.
We will probably have to agree to disagree about federalism and global government. I think you are slighting extemely important insights about human nature and power. No one would disagree that political structures that divide and diffuse power are inefficient. That is their reason for being. We trade efficiency in government for security from tyrants. If you buy enlightenment ideas about progress and the self-perfectability of man, it may be tempting to scrap inefficient systems for a uniform global government. But based on what I know about man’s lost and fallen state and tendency to abuse power, I firmly believe in the wisdom of inefficient federal structures.
I do believe utopianism has it place (I sense some utopianism in your comments). But the true utopia, Zion, cannot be established by changing political structures. It will only come about by changes in individual hearts that prevent people from engaging in the evil that makes inefficient political institutions necessary. In short, I also look forward to the establishment of a perfect world goverment. However, I believe the Savior (and NOT the UN) will be the force behind this achievement.
This is not to say that I am not optimistic about some international law. The world would be much better off if each country were to adopt certain univeral human rights norms. And assuming it doesn’t meddle too much in non-trade issues, the WTO may result in increased wealth for the world by leading to uniformly low barriers to trade. But these goals do not conflict with keeping too much power out of two few hands.
Shawn,
I agree we may be at an impasse. Functionally the court’s actions are by definition legitimate. This is how the court was designed. Maybe, you mean somehting else by legitimate. I would also argue that Marbury v. Madison was about political capital and was in many respects overturned shortly after (though not for the precedent upon which it has become famous). I don’t think the political aspect is modern, nor is the rhetoric about the court rightfully being non-political. These two ideas: the funcational politicalness of the court and the desire for a non-political court have existed since John Jay. I think you have taken my anti-federalism pro-globalism to an extreme I did not argue for. I agree with checks and balances and yes this has been weighed agaisnt efficieny. I am not arguing for no checks, I am simply arguing that you can have checks and balances along with uniformity (this is really the move the US has been making for over 100 years–unifomirty between state legal regimes in order to faciliate free markets. I think the same process has also begun on a global level and within bounds can be very useful).
And yes, my Mormon roots come out in my utopian leanings.
Are you saying that because it gets away with what it does, the court’s actions are legitimate? If so, then many discussions about the legitimacy of power currently in place would be meaningless.
Also, your assertion that that is the way the court was designed seems circular. Like many things legal and constitutional, the court has become what it is through a historical process that could have gone many different ways. The current court is not the unavoidable result of design.
My argument is that the court has far exceeded many possible limits: what it was intended to be, what a knowledgable person at the time of its creation would have understood it to be, what it ought to be, etc.
If anyone is interested, I posted my feelings about the death penalty a while back here. To put it shortly- I am opposed to the death penalty, especially as it has been applied in this country. I think it is a shame and a travesty, and does not promote retribution, rehabilitation or deterrence at all. Note that I only include retribution, rehabilitation, and deterrence because those are typically named as the three main goals of our criminal justice system, with more or less emphasis placed on each category depending upon the state and the crime.
Oops- here is that link.
To retribution, rehabilitation, and deterrence, I’ll add repudiation. A society that won’t punish its guilty members shares in the guilt of its members’ crimes. An href=”http://www.timesandseasons.org/index.php?p=1169#comment-9087″ essay posted last August on Gordon Smith’s death penalty topic at Times and Seasons expresses my thoughts on that matter.
http://www.timesandseasons.org/index.php?p=1169#comment-9087
OK, what’s the trick for posting links here?
gst,
The pay for executioners is irrelevant. I was responding in that comment to the previous comment where an analogy with some wild assumptions had been proffered.
As for squeamishness, of course it is not surprising that people closest to the act are more haunted by it, which is why death penalty advocates ought to ask themselves if they would be willing to give the injection. Still, for someone who argued as I did in comment 9 that we should decide based on reasoned deliberation and not passions aroused, this isn’t a good enough reason to abolish capital punishment. Since the passions inevitably do have some influence, however, I would prefer to err on the side of mercy rather than revenge.
This is why, unlike John, I think that victims’ friends and families should be the last to have anything to say about what happens to criminals because their judgment is impaired by their grief.
For a thoughtful and even-handed account of how one member of the Illinois commission for the reform of the capital punishment system changed his mind, see here:
http://www.newyorker.com/fact/content/?030106fa_fact
For a more partisan, but still very interesting look at the process in another state:
http://www.nybooks.com/articles/17670
Perhaps someone will add the links (to comment 24 as well). It says URLs convert automatically but it doesn’t seem to be working.
One of the main questions that arises with the death penalty (and it has arisen here) is how do we deal with the fact that innocent people are sometimes convicted and punished? Are we ever willing to to allow an innocent person to be executed or should we ban all executions due to the inherent risk of an imperfect system?
I read some interesting Biblical-based reasonsing on this question by Alan Dershowitz once. I don’t have the book handy right now but I might later. He used the argument between Abraham and God about Sodom as the basis of his point. Abraham argued with God that if there were ten righteous people in the city, that it should not be destroyed. Previously he had argued about larger numbers but after he learned that there weren’t ten just people in the city he stopped arguing. He didn’t say: “But God, if there are five righteous people in the city, it should be saved.”
The conclusion A.D. seemed to be arriving at from this story is that for justice to be achieved on earth, we are going to have to accept that a small percentage of those who are convicted won’t actually be guilty. Otherwise, we wouldn’t be able to imprison anyone, execute anyone, etc. It basically boils down to how much injustice are we willing to tolerate in order to manage our society?
I’ll try and find the quote and post it at some point.
Bill, who is suggesting that we let victim’s families decide the penalty? They shouldn’t, and they don’t. Nor do I think that when a victim’s family pleads for clemency for the murderer should we listen to them. Society at large demands the life of the heinous murderer.
gst: “Society at large demands the life of the heinous murderer”
What does that even mean? How can society demand something? What if a significant percentage of society do not want people executed? What if an even higher percentage don’t want a specific person executed? Does if have to do with the opinion of the society? Is there some societal consciousness that demands it?
HL, I wasn’t clear. I don’t mean to suggest that every society necessarily demands the death penalty. Texas does; Wisconsin doesn’t. But in states where people are executed, it’s because the state demands it, not because the families of the victims do.
gst: thanks for clarification. Makes a lot more sense now. You’re making the practical point that the state prosecutor is actually the one who demands that the court consider seeking the death penalty. I thought it was some fuzzy rhetorical point about this nebulous idea of a society demanding justice for its citizens.
HL, yes. But I also actually believe the “fuzzy rhetorical” point, and therefore vote for pro-death penalty candidates. I think society should demand justice for its citizens by the imposition of the death penalty. But if it doesn’t, it doesn’t.
gst,
I wasn’t suggesting that anyone was suggesting that families “decide the penalty”. I made it clear in comment 24 that I thought the state and not any individual was responsible for such decisions.
Nevertheless, no less a personage than our own president has called for a victim’s rights amendment to the constitution, guaranteeing their right to be heard at a sentencing. I don’t think this is helpful, but then again, I’m not in favor of hate crimes legislation either.
Incidentally, I thought the court’s decision was a little incoherent. Why would the death penalty be any more or less cruel and unusual for someone who is sixteen than for someone who is thirty-two or sixty-four?
gst,
Then my question again. What do you mean by this fuzzy rhetorical point? If a state has laws that allow for the death penalty than that society (the society within the state) demands justice for its citizens through the death penalty? I don’t think I understand. The legislature decides what society demands in terms of justice?
This seems to me to be a mix of some Platonic vision of perfect justice and a very pragmatic view that justice is what the legislature says it is. That seems a very odd juxtaposition to me.
HL, it’s not that “The legislature decides what society demands in terms of justice,” rather that society makes its demands through the legislature.
Here’s what Alan Dershowitz says about Abraham stopping the argument to save Soddom after finding out that there aren’t ten righteous souls in Sodom:
(page 88, the Genesis of Justice, by Alan Dershowitz)
I’m generally against the death penalty. But I support it when it comes to people like these:
http://newyorker.com/fact/content/index.ssf?040216fa_fact6
Let’s not forget Nehor in the 1st chapter of Alma. Verse 13 reads:
“And thou hast shed the blood of a righteous man, yea, a man who has done much good among this people; and were we to spare thee his blood would come upon us for vengeance.”
This was done according the law given by Mosiah-a righteous king. In my opinion, given in the context of that part of the Book of Mormon, it would seem to lend credence that the death penalty is not only justified in some situations, but that it is the right thing to do for certain situations.
Interestingly, the Arizona Republic ran a special report last year on all the inmates in Arizona on death row. In the article you can link to profiles of each individual inmate and a brief summary of what the crime was. I went through all of them and I would have to agree that the death penalty seems to be the right punishment in most of their cases.
http://www.azcentral.com/specials/special32/
AH