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Go Home The Casuist

POLITICS SEPTEMBER 29, 2011

The Casuist

BY LEON WIESELTIER

Political argument is never pure. I do not mean that it is always influenced by interests. I do not believe that. Even as the black arts of influence flourish as never before, I quixotically insist upon the possibility of objectivity, because without it this democracy is doomed. Logic and evidence (which must be funded!) will sooner or later thwart the attempts of the powerful—numerically, financially—to define the true. The integrity of argument is one of the requirements of a political order that determines its course by the expression, and the evaluation, of opinion. When I say that political argument is never pure, I mean rather that it is always applied, and therefore can never be indifferent to consequences. A political idea is not a poem, or an equation. If a political idea is made actual, and what is the point of holding a political idea unless you wish it to be made actual, somebody will win and somebody will lose, somebody will be helped and somebody will be hurt. For this reason, political discussion must never become too insular, too systematic, driven only by its own premises and by considerations of internal consistency. One may be thoroughly consistent and thoroughly callous. One may reason oneself into indecency. Who by fire, who by water, who by regression analysis. The intrusion of care into the rigor of concepts, when the subject is the lives of others, is not an intrusion from outside. A scruple about humaneness must never be external to political thinking. Otherwise argument becomes casuistry, and smart becomes stupid. The other day the op-ed page of The New York Times presented a fine example of smart becoming stupid.

I READ ROSS DOUTHAT’S column three times—a quality of attention I usually reserve for, say, Wallace Stevens—because I could hardly believe the plain meaning of its words. His subject was the execution of Troy Davis and its implications. Douthat concedes, as must any reader of the coverage of Davis’s failed attempt to avoid the death penalty for his improper conviction in the shooting of an off-duty policeman in Georgia in 1989, that the case against Davis was riddled with dubieties and uncertainties. The state of Georgia likely killed an innocent man. But Douthat is not outraged, or even troubled, by that likelihood. Instead he chooses to argue against “abolishing capital punishment in a kind of despair over its fallibility.” Infallibility is too high a standard. No social arrangement is perfect. Oakeshott said that, right? Whereas being “afraid of executing the innocent” is “a healthy fear for a society to have,” Douthat adds that “there’s a danger here for advocates of criminal justice reform.” Now follow along closely. “After all, in a world without the death penalty, Davis probably wouldn’t have been retried or exonerated.” But Davis is not merely exonerated; he is exonerated and dead. In a world without the death penalty, Douthat continues, Davis “would have spent the rest of his life in prison, and far fewer people would have known or cared about his fate.” But Davis is not merely cared about; he is cared about and dead. “Instead, he received a level of legal assistance, media attention, and activist support that few convicts can ever hope for.” But Davis is not merely famous; he is famous and dead. “And his case became an example of how the very finality of the death penalty can focus the public’s attention on issues that many Americans prefer to ignore.” So the innocent man did not die in vain. He achieved celebrity, and he left us lessons. Is better social policy really not worth a single human life? “Simply throwing up our hands and eliminating executions entirely” would be only “a way to console ourselves with the knowledge that no innocents are ever executed, even as more pervasive abuses go unchecked.” I do not see what is so cheap about such a consolation. And a lethal injection is pretty pervasive. For Douthat, however, the execution of an innocent man may even be a kindness to him. “A lifelong prison sentence can prove more cruel and unusual than a speedy execution,” since the American penal system “can be brutal, overcrowded, rife with rape and other forms of violence.” I gratefully note the compassion in that “speedy”: it would be wrong to kill an innocent man slowly. I admit that I know as much about American prisons as the next viewer of Oz, but it has been my observation that most people would prefer to die later rather than sooner. Anyway, who are we to decide when innocent people should die? Finally Douthat concludes his case against the abolition of capital punishment: “And while it would put an end to wrongful executions, ...”—but who cares how a sentence that begins this way ends?

SO INJUSTICE IS TO BE extenuated if it provokes an interest in justice. Injustice is even a lucky break for justice. A lot of villains can get away with a lot of villainy on such grounds. The debate about the death penalty in America has been about the execution by the state of people who are guilty of murdering other people. Are we now to have a debate about the execution by the state of people who are not guilty of murdering other people? It seems so, in Douthat’s world. His commentary on the death of Troy Davis is not only twisted, it is also puerile—the work of a man for whom debate is all, who should tear himself away from his laptop and get out more, who lives in the rapture of points and counter-points that passes for intellectual life for too many opinion journalists, and knows only the athleticism of argument and counter-argument. Douthat’s clever little discourse is lacking in a certain degree of acquaintance with life. It is all treble and no bass. And its casuistic nature is typical also of a theological desperation. Something happened in the world that embarrassed Douthat’s worldview. He could have chosen to meet the contradiction honestly, to acknowledge the intellectual dissonance, to take on the moral disquietude. Instead he chose to protect his worldview, and secure it against empirical shock, in the manner of all apologetics. The execution of an innocent man had to be (as the Marxists used to say) worked into the analysis. The aim of Douthat’s dialectical agility is to bend reality to his mental needs, which in his case are the needs of conservatism. Progressives do this, too, since they, too, believe in tidy philosophical packages, in world-pictures that add up and account for everything under the sun. But nothing rots the life of the mind more than the immunity to experience.

Leon Wieseltier is the literary editor of The New Republic. This article originally ran in the October 20, 2011, issue of the magazine.

SHARE YOUR THOUGHTS

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78 comments

What a surreally uplifting experience it is to read one's own thoughts below someone else's byline! If I weren't convinced Mr. Wieseltier is indeed inside my head, I might have to accuse of him telepathically facilitated plagiarism. Douthat's column is a wretched piece, yet I feared it would prove to be no easy target. TNR's most eloquent voice here has annihilated it with the finality of a cyringe full of poison and the literary perfection of almost no other living writer. This is great writing and a fine contribution to the world of ideas. The prevalence of this line of thinking will someday drag the United States into the 21st century and into alignment with the rest of the civilized world that condemns capital punishment. Superb article.

- Konstantin

September 29, 2011 at 12:47am

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*syringe I was so taken with the tragic beauty of the article I forgot how to type.

- Konstantin

September 29, 2011 at 12:49am

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Wieseltier hits it on the head. That Douthat is a fool and a knave has long been apparent, but his column on Troy Davis' execution was fundamentally indecent in a way that one seldom encounters in a venue like the NY Times (w. the sometimes exception of Krauthammer in the Wash Post). I was eating lunch when reading the Douthat piece and literally had to wait fifteen minutes before my next bite because of how physically repulsed I was by his logic. One would think that the Times' editors should have known better than to print such amoral swill, even if Douthat doesn't know better himself.

- dlevin23

September 29, 2011 at 1:02am

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Hear, hear! And "puerile" is the word. Douthat is a child, a dangerous child because of the size of his megaphone.

- AaronW

September 29, 2011 at 2:33am

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I just can not get over how devastatingly stupid that Douthat column is. He is shockingly fundamentally wrong about a lot of basic notions of humanity and civilization. I've never paid much attention to his writings -- I reckon I prefer the prose of my elders. But he has an editor whose job it is to notice stuff, right? Maybe even a few editors at that newspaper? I know there's an old maxim that states an editorial writer is doing his/her job if he/she gets lots of feedback, negative or otherwise, but in this case the sheer callousness & stupidity of the thing has to transcend the scope of the reaction & response pieces from other publications. The NYT has to realize how dangerously bad this is. It's bad for business and it's bad for society. A lot of people still read The NYT with an understanding that doing so will make them a better person. Not everyone reads critically or with a healthily doubtful eye. Not everyone will have their lunches almost ruined, like poor dlevin above, when they scan America's most popular editorial page. Someone somewhere read the Douthat column, nodded his/her head, and felt a valid new angle on the issue of capital punishment had just been explored. That's injustice.

- Konstantin

September 29, 2011 at 4:21am

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"Something happened in the world that embarrassed Douthat’s worldview. He could have chosen to meet the contradiction honestly, to acknowledge the intellectual dissonance, to take on the moral disquietude. Instead he chose to protect his worldview, and secure it against empirical shock, in the manner of all apologetics." This could all be said about almost any of Douthat's columns.

- Jeff_Smith

September 29, 2011 at 4:58am

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To save a life is to save the world. To take a life is to destroy the world. Our faith teaches us that. It is the very essence of morality. And yet Douthat wants to protect the life of the yet unborn. How do you square that circle.

- paskunac

September 29, 2011 at 5:57am

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Agreed Aaron - and Douthat's views on women are even more childish (if that's possible). A beautiful, righteous demolition Leon, well done sir. Douthat is a glib, predictale ideolouge who is somehow every liberal columnists favorite pet conservative because he can form a sentence. It says more about the liberal media than Douthat.

- WandreyCer

September 29, 2011 at 7:13am

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my "b" gets stuck on this keyboard...predictale = predictable.

- WandreyCer

September 29, 2011 at 7:14am

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Ross Douthat isn't even consistent. Here's what I wrote in the NYTimes comment section: Look, Ross, there's a lot of injustices in our penal system and no clear pathway to comprehensive reform. If we can fix any one of them, we ought to take that chance. Especially since you get all moralistic when siding against abortion, you should think through how people can be pro-life and pro-death penalty. At least the Vatican is somewhat morally consistent in opposing the death penalty. Just because you may have to address other consequences doesn't mean it's not the right thing to do. #Douthatisahackturd

- chaitless

September 29, 2011 at 7:41am

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Exposing (undressing!) Douthat brings joy, but I have to admit I am confused by this essay. Is LW an empiricist ("nothing rots the life of the mind more than the immunity to experience") or a rationalist (see his essay June 23rd in defense of Reason). Do I not understand LW's nimble mind, or am I simply a hobgoblin?

- rayward

September 29, 2011 at 7:48am

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I started to type out a few thoughts but I can't contribute more than what Konstantin et al wrote. Well done, and man what a fantastic evisceration of an idiotic article. Hats off to Mr Wieseltier. שנה טובה to my Jewish brothers and sisters... this goy wishes you all the very best the new year may bring.

- Tristan

September 29, 2011 at 8:59am

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Easily the best thing I've read of LW's.

- arock28

September 29, 2011 at 9:06am

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I've always opposed capital punishment, but it is low on my moral outrage priorities. People are fascinated by the exceptional. People die all the time from auto accidents, house fires, medical mistakes, random crimes. If the auto accident occurs with a five year old behind the wheel; the house fire from a lightening strike; the medical mistake by Michael Jackson's doctor; the random crime by a movie star; then we perk up and pay attention. People are fascinated by blame and intent. If the auto accident occurs because the driver deliberately ran down a pedestrian; if the house fire came from arson; if a doctor does a "mercy" killing of a terminal patient; the random crime by definition; spiritually and psychologically we form a lynch mob. Are we forming a kid of metaphorical "lynch mob" here to go after Douthat? Although my contacts with the legal system have been infrequent, they have been interesting and striking experiences, and left me with a vivid impression of random and dubious from a philosophical and practical the whole process of "justice" is. We should err on the side of caution, but strike when the iron is hot.

- skahn

September 29, 2011 at 10:04am

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We're not forming a metaphorical lynch mob here any more than we form one when we condemn the latest callous outburst from the Tea Mob. We're condemning a disgusting idea that should offend any decent person's morality, one that, if left unchallenged, can lead to all manner of horrors. Truly, it has already led to horrors since this is the kind of argument that keeps capital punishment a reality and our courts unreformed.

- tealeaves

September 29, 2011 at 10:56am

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“Puerile” is the perfect adjective for Douthat. This is especially true of his writing on subjects such as sex and birth control (both of which disgust him). His “clever little discourse” seems to be particularly “lacking in a certain degree of acquaintance with life” when he deals with the subjects of women and heterosexuality. Those columns of his (and his book Grand New Party) are tainted by a quality of denial as well as of immaturity. They remind me of the pronouncements of certain Catholic priests whose fear, loathing and ignorance about women and heterosexual relations aren’t merely adolescent but infantile. I used to think that Douthat would someday grow up. But many men who share his views never do, Catholic clergy predominant among them.

- heppner52

September 29, 2011 at 11:37am

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I was appalled by the Douthat's piece as well, despite having reached a different conclusion about Davis' guilt. My sense is that he was indeed probably guilty. But for any decent thinking person, probably ain't good enough. It's the prosecutor's job to prove that beyond a reasonable doubt, and they didn't do it. For that reason, Davis shouldn't be either dead or in jail. But that difference of opinion aside, thank you for a well written and compelling piece.

- gwcross

September 29, 2011 at 11:46am

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I'm just getting started on this, but really Wieseltier are you too fucking empyrean to link to the column you're slamming?

- basman

September 29, 2011 at 11:49am

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basman, how does your comment improve the world? Do you just post the first thought that pops into your mind? [This is the third thought that popped into my mind. I deleted the first two. Be thankful for small favors.] I will return to my project for improving the world, which you will never know.

- skahn

September 29, 2011 at 12:23pm

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I too felt more than queasy as I read Douthat's piece. I appreciate seeing my feelings articulated with passion and force. I must say Douthat's column reminds me of those whom I have met who justify human misery, whether caused by nature or by other humans, as "God's mysterious will," introduced to somehow lead us to deeper spiritual understanding (or should that be "deeper spiritual compliance?"). Thank you, but I do not need to have a twelve-year-old child in some desperate country gang-raped, dismembered, disemboweled, and burned alive in order to further my spiritual well-being. Nor do I need to have anyone, let alone an (arguably) innocent man, murdered to improve my appreciation for justice. There are injustices enough without this one.

- vanderso

September 29, 2011 at 12:33pm

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Okay I just found and read Douthat’s piece. It’s as full of ridiculous arguments as Wieseltier makes out in his second paragraph. And his third paragraph is an excellent anatomizing of a certain style of punditry and public reasoning that Douthat typifies. (I can’t imagine the NYT can be happy with the sheer absurdity of some of Douthat’s arguments. I’ll add that I think that Wieseltier gets off to a shaky start in this diarist piece in his first paragraph by over egging the democracy as imperiled idea merely to get to laying waste Douthat’s stupider arguments. Stupider, because buried in the morass and his follow up notes (http://douthat.blogs.nytimes.com/2011/09/26/notes-on-the-death-penalty/ ) is a line of reasoning that runs along these lines: There is a clear principled argument to be made for capital punishment in the most egregious and heinous of cases based on the retributive aspect of criminal law sentencing. A brick wall this argument runs into is error, error which is of course irreversible being fatal. The incidence of error was a large reason why the states noted in the essay have abolished captial punishment. The larger reasoning is that while theoretically justifiable, error, the impossibility of satisfactory practical application, subsumes the the theoretical argument or, put another way, renders it just that-theoretical. The Steikers in their essay here (http://www.tnr.com/article/95378/troy-davis-death-penalty-abolish ) say the following: …...Numerous other states have come close to abolition or have adopted new limitations on the death penalty (such as Maryland’s requirement that death sentences rest on biological evidence or on a videotaped recording of either the offense or a confession by the offender... So, I'm wondering whether the restrictions evident in the statement I quoted are the beginning of an answer to that reasoning. I’ve said before that I'd like to see and consider the arguments why not

- basman

September 29, 2011 at 12:40pm

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That didn't take. I'll try it again, Okay I just found and read Douthat’s piece. It’s as full of ridiculous arguments as Wieseltier makes out in his second paragraph. And his third paragraph is an excellent anatomizing of a certain style of punditry and public reasoning that Douthat typifies. (I can’t imagine the NYT can be happy with the sheer absurdity of some of Douthat’s arguments. I’ll add that I think that Wieseltier gets off to a shaky start in his diarist piece by in his first paragraph over egging the democracy is imperiled idea merely to get to laying waste Douthat’s stupider arguments. Stupider, because buried in the morass and his follow up notes (see below ) is a line of reasoning that runs along these lines: There is a clear principled argument to be made for capital punishment in the most egregious and heinous of cases based on the retributive aspect of criminal law sentencing. A brick wall this argument runs into is error, error which is of course irreversible being fatal. The incidence of error was a large reason why the states noted in the essay have abolished captial punishment. The larger reasoning is that while theoretically justifiable, error, the impossibility of satisfactory practical application, subsumes the the theoretical argument or, put another way, renders it just that-theoretical. The Steikers in their essay here (see below) say the following: …...Numerous other states have come close to abolition or have adopted new limitations on the death penalty (such as Maryland’s requirement that death sentences rest on biological evidence or on a videotaped recording of either the offense or a confession by the offender... So, I'm wondering whether the restrictions evident in the statement I quoted are the beginning of an answer to that reasoning. I’ve said before that I'd like to see and consider the arguments why not. Steikers: (http://www.tnr.com/article/95378/troy-davis-death-penalty-abolish ) Douthat (http://douthat.blogs.nytimes.com/2011/09/26/notes-on-the-death-penalty/)

- basman

September 29, 2011 at 12:43pm

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I tried to read Douthat's column when it came out, but I couldn't get through it. I knew I was reading something unpleasant and fundamentally dishonest - turns out "casuistry" was the word I was looking for. And, to the extent there's a thesis in his casuistic apologetic, it's undermined by empirical data. Ross says that the "danger" for advocates of penal reform is that, "in a world without the death penalty, Davis probably wouldn't have been retried or exonerated." That's false. The Dallas County DA has been reviewing convictions in non-capital cases where DNA testing was not available at the time of trial but DNA evidence was retained by the state, and has so far exonerated 21 non-capital defendants. There have been 41 exonerations overall in the state of Texas. I don't know what Douthat would find more shocking - the exonerations or the fact that none of the defendants came from backgrounds as privileged as Douthat's. One guy was exonerated after he served his entire 30 year prison term. He was a model prisoner, but was denied parole because he refused to admit that he committed the crime for which he was convicted. Admission of guilt is a sine qua non for getting paroled, which makes it tough if you're innocent and principled. (Joseph Heller would be so proud.) And while you're probably thinking that the exoneree was a white businessman, maybe even a job-creator, oppressed by a society stacked against him at every turn, it turns out he was a poor African-American. But, let's end on a happy note - the exoneree will receive $80,000 for each year he was wrongly imprisoned, plus an annuity with a cash value of about $2.4 million. He's a rich guy now, but I imagine he would've preferred to make his money some other way.

- GeoffG

September 29, 2011 at 12:46pm

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I tried to read Douthat's column when it came out, but I couldn't get through it. I knew I was reading something unpleasant and fundamentally dishonest - turns out "casuistry" was the word I was looking for. And, to the extent there's a thesis in his casuistic apologetic, it's undermined by empirical data. Ross says that the "danger" for advocates of penal reform is that, "in a world without the death penalty, Davis probably wouldn't have been retried or exonerated." That's false. The Dallas County DA has been reviewing convictions in non-capital cases where DNA testing was not available at the time of trial but DNA evidence was retained by the state, and has so far exonerated 21 non-capital defendants. There have been 41 exonerations overall in the state of Texas. I don't know what Douthat would find more shocking - the exonerations or the fact that none of the defendants came from backgrounds as privileged as Douthat's. One guy was exonerated after he served his entire 30 year prison term. He was a model prisoner, but was denied parole because he refused to admit that he committed the crime for which he was convicted. Admission of guilt is a sine qua non for getting paroled, which makes it tough if you're innocent and principled. (Joseph Heller would be so proud.) And while you're probably thinking that the exoneree was a white businessman, maybe even a job-creator, oppressed by a society stacked against him at every turn, it turns out he was a poor African-American. But, let's end on a happy note - the exoneree will receive $80,000 for each year he was wrongly imprisoned, plus an annuity with a cash value of about $2.4 million. He's a rich guy now, but I imagine he would've preferred to make his money some other way.

- GeoffG

September 29, 2011 at 12:46pm

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Apologize for the double-post.

- GeoffG

September 29, 2011 at 12:49pm

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empyrean! basman - your temper is an epic event, more more!

- WandreyCer

September 29, 2011 at 1:21pm

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It was a relief to find that I was not alone in my sweeping sensation of nausea after reading Douthat's column. Is there no limit to the hypocrisy of the "pro-life" megaphones?

- dfoley@nch.org

September 29, 2011 at 1:34pm

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I'll give Mr. Wieseltier credit for not linking to the odious column in question, not because it is odious but because clicking there might cause a nonsubscriber to The New York Times to use 5% of the allotted access to his/her 20 monthly free NYT articles. At least, I think that's how the NYT website works now. Here's a semi-legal shortcut to all that: http://mgpaquin.wordpress.com/

- Konstantin

September 29, 2011 at 1:51pm

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"For I was hungry and you gave me nothing to eat, I was thirsty and you gave me nothing to drink, I was a stranger and you did not invite me in, I needed clothes and you did not clothe me, I was sick and in prison and you did not look after me." Then Ross appeared. "But Lord, if I took you in when you were hungry, it would be a moral evasion. I'd be so proud of myself for feeding you, I'd forget all about the bigger picture of what causes hunger in the first place, like tariffs and agricultural price supports and misguided environmental policies that might someday be enacted. Not to mention, if I just gave you food, you'd never learn to fend for yourself. Believe me, you'd be worse off if all you had to do was stick your hand out to get fed. And you're making the exact same mistake when you ask me - virtuous, hard-working, God-fearing me - to give you clothes, water or shelter. Sheesh - we can't possibly solve all the world's problems by taking care of them one at a time. Someday, there will be fresh water, clothes and decent housing for everyone, but until then, it's wrong to help individuals in need. Really, it's for their own good. That bit about being sick and in prison really grates. You know I'm all about criminal justice reform. I have been willing to devote dozens of words to vague hand-waving about what reformers should be focusing on instead of wrongful executions. Just listen: 'Criminal justice reformers should point out that too often our punishments don’t fit the crime — that sentences for many drug crimes are disproportionate to the offenses, for instance, or that rape and sexual assault have become an implicit part of many prison terms.' Now, I know that many criminal justice reformers have devoted their lives to making precisely these arguments, and that they are attacked by conservatives for making them - a standard attack line is that reformers have more sympathy for criminals than for their victims. Still, if reformers just keep making the argument, at some point conservatives will tire of the demagoguery and fully embrace a humane justice system. No one will welcome that day more than me, Lord. But, until then, you need to learn the virtue of patience, and stop worrying so much about yourself that you miss the bigger picture."

- GeoffG

September 29, 2011 at 1:56pm

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...basman, how does your comment improve the world? Do you just post the first thought that pops into your mind? [This is the third thought that popped into my mind. I deleted the first two. Be thankful for small favors.] I will return to my project for improving the world, which you will never know... skahn if improving the world was a criterion for doing things, not much of this would be going on. You seem by your posts to be a likable (if not quirky and somewhat befuddled) person--male of female I don't know, I'd guess male. As for me just posting the first thought that pops into my head--all too often. Note to self: skip first thought altogether unless it improves the world.

- basman

September 29, 2011 at 2:45pm

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Geoff, great post, my friend

- Tristan

September 29, 2011 at 2:48pm

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Beautiful, Geoff.

- tealeaves

September 29, 2011 at 3:00pm

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We may disagree with Douthart’s factual premises, but he is essentially engaging in a cost/benefit analysis that has a long pedigree in moral philosophy. In the narrow sense, he is arguing that, absent the existence of the death penalty, Davis would not have had even a shot at a commutation of his sentence, and he would have been doomed to life imprisonment, which, given current prison conditions, would arguably be worse than death. In the broader sense, he argues that abolishing the death penalty, rather than reforming it, on the premise that the criminal justice system cannot be trusted to get it right, will seriously undermine confidence in the criminal justice system, as well as perhaps provide a license to relax the system’s due process safeguards. So he’s essentially arguing that the human cost of abolishing the death penalty would exceed the cost of occasionally executing an innocent person. Again, the principle of sacrificing the few to save the many has a long pedigree in the field of moral philosophy. That principle has been raised with regard to torture. Would torture be justified if it would with certainty save thousands of lives? I think it would. The problem is that such a scenario could rarely, if ever, be known with certainty to be factual. And – basman will not like this example – we made such a cost/benefit analysis in deciding to nuke Hiroshima and Nagasaki. So why are accusing Douthart of being some kind of monster, rather than simply engaging him on the merits? Dhurtado

- NR143296

September 29, 2011 at 3:11pm

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"Logic and evidence (which must be funded!) will sooner or later thwart the attempts of the powerful—numerically, financially—to define the true." Too often wishful thinking and hope won't thwart the attempts of the powerful to define the 'true.' In fact too often, this kind of thinking plays into hands of the powerful. We can ask politely, implore them, have empathy, turn the other cheek and the only thing it does is validate their actions further. It 'excites' them. Ross' position clearly illuminates, for us, the rationale and internal logic of the abusive mind. "I must hit you so that you fear me. If I hit you, you must have deserved it. If you make me hit you, it is for your own good." Ross exhibits this further by rationalizing the state-sanctioned killing as a means of control. That without the 'death penalty' the powerless would not fear. They would not cower. The death penalty is not a deterrent to anything. It is simply a manifestation of our civilization to collectively accept and support state-sanctioned murder.

- singlspeed

September 29, 2011 at 4:17pm

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skahn - even though in the present instance of basman you have targeted a normally benign poster, I support your sensitivity and positive desire to raise the civility level of posting. Over the years, I have broken a few lances myself in that direction, so I welcome it.

- JackR

September 29, 2011 at 4:25pm

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"So why are accusing Douthart of being some kind of monster, rather than simply engaging him on the merits?" Because the idea that some need to die involuntarily in the interest of society as a whole is monsterous, that's why. When someone offers their life in the interest of others it's fine, noble even. When the state takes their life in the interest of others, it's a dangerous slide into dark moral territory. The Eugenics movement comes to mind - those who argued that we need to forcibly sterilize and potentially even kill "lesser" humans for the benefit of the species. I have the same misgivings about Utilitarianism, which is the pedigree I believe you reference. The ironic thing here is that Douthat would no doubt count himself as a staunch individualist and yet here he is arguing a rabidly collectivist argument to preserve his cherished death penalty. It's been said before but reactionaries use ideas not as a framework for understanding but as a weapon, to bludgeon their opponents with.

- tealeaves

September 29, 2011 at 5:29pm

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Dhurtado: There are of course problems with cost benefit analyses and there are places where they are inapposite. There are infinite morally absurd examples of passing consequentialist muster at say the cost of innocent life. Wieseltier’s refrain in his second paragraph on rehearsing some of Douthat’s arguments “Davis is (whatever results from the specific argument) and dead” speaks to his powerful point that Douthat’s arguments exemplify such moral absurdities. So to take your own example from Douthat, stipulating for the sake of argument his innocence, Douthat’s starting point, capital punishment will find justification regardless of his innocence because it focused attention on him such that he got a chance to have his conviction reviewed with an outpouring of resources that make as seem nothing his chances for any of that were he merely serving a life sentence. To which this refrain “and dead” is the right answer. Now you can argue that what legal remedies and resources accrued to Davis as an individual is not the benefit; the benefit is the application of those goods to death row inmates as a class of offender which but for capital punishment would not be applied. There are at least two answers to this which are analytically different: one, the deontological answer, is that indeed innocent human life is being sacrificed on the altar of some greater human good which is just as morally capricious as say experimenting on the living in the search for cures for the many; the second, a matter of sheer logic, is the death penalty generates otherwise inapplicable resources to try to obviate the death penalty. If it is put against this that that leaves those innocently convicted and with life sentences, the answer is not the death penalty but a better resourced process for for fighting wrongful convictions. In a nutsehll, there are limits to the utilitarian resolution of moral questions. Finally, I for one am not accusing Douthat of being a monster. Nor do I read Wieseltier to. I’m arguing he made dumb, and, ultimately, monstrous, arguments. And I think that’s what Wieseltier is saying better than I can.

- basman

September 29, 2011 at 5:40pm

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hey, it takes real courage to advocate executing innocent people, (in Jeebus name, amen) I am sure Douthat must be a real big fan of Rick Perry. "If capital punishment disappears in the United States, it won’t be because voters and politicians no longer want to execute the guilty. It will be because they’re afraid of executing the innocent." Exactly, we should not only not be afraid of executing the innocents, we should begin a process of pre-emptively executing people who have not yet even been accused of crimes, it would be a perfect deterrent for all would be criminals for a state to say "we will kill you even if we suspect you might commit a crime." "It could encourage a more cynical and utilitarian view of why police forces and prisons exist, and what moral standards we should hold them to. And while it would put an end to wrongful executions, it might well lead to more overall injustice. " So true, and what greater injustice is our society that we do not execute innocent children. I tell you what, start lining up 10 year olds against the wall and blow them away and tomorrow most of the problems in the world will be solved. It will be such a wake up call towards the unfairness of the capital gains tax rate that it will abolish it creating a utopian society. I think all Republicans should have as a campaign slogan "If you are not courageous enough to kill innocent children in the name of Justice, then you must not be President."

- blackton

September 29, 2011 at 5:45pm

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I agree with Blackton that killing a few innocents is necessary if we're going to assure that no guilty people go free. It's the reverse of Blackstone's maxim that it's better for ten guilty to go free than for one innocent person to suffer. We need to err on the side of lack of caution, otherwise caution will lead us to spare the life of someone who doesn't deserve it. Still, it seems a little unfair that only poor people and minorities get wrongly executed. Just one more example of a society that valorizes "victims" while denigrating the contributions of the rich and privileged who work so hard to victimize them. I say, if executing the innocent serves the greater good, then we simply can't let poor people get all the glory. The privileged need to step up and correct this imbalance. Since Ross admits that Davis was probably wrongly executed, he should do his part by volunteering to take a needle himself. That would save more lives than a lifetime's worth of NYT columns. And rich folks could finally have the pleasure of seeing one of their own making society safer by sacrificing their lives for justice.

- GeoffG

September 29, 2011 at 6:23pm

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Geoff kills it.

- WandreyCer

September 29, 2011 at 8:11pm

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First, let me say that I oppose the death penalty because: (1) our criminal justice system is indeed too fallible to be trusted with imposing the ultimate, irreversible punishment; (2) executions damage our own moral compass; and (3) the death penalty has never been demonstrated to be a greater deterrent than other forms of punishment. That said, I think the argument that a cost/benefit analysis cannot appropriately be applied does not withstand scrutiny. I disagree with Douthart that a cost/benefit analysis justifies capital punishment even with the risk of executing innocent people, but I also disagree that the application of a cost/benefit analysis is morally corrupt. Douthart is not arguing that affirmatively and knowingly killing innocent people is justified by some public good. He argues that, instead of abolishing the death penalty, we should take measures to minimize the risk of inadvertently killing innocent people. But he further argues that a small risk of inadvertently killing innocent people might be justified by the public good. I don’t think he is correct as a factual matter. But he is not wrong to even ask the question. Imagine it could be shown that the death penalty has a deterrent value that saves 2,000 innocent lives per year. Would that not justify the mere RISK that a few innocent defendants might be executed? If not, why not? Why are the 2,000 innocent lives not worth more than the handful of innocent lives? To take a seemingly more mundane example, the FDA regularly approves drugs for public consumption that it knows pose a risk of death in some users. But it determines that the risk is counter-balanced by the benefits the drugs will convey to most users, presumably saving more lives than it destroys. Finally, was the United States morally justified in dropping atomic bombs on Hiroshima and Nagasaki, killing hundreds of thousands of innocent people, including tens of thousands of children? If so, why? If not, why not? Dhurtado

- NR143296

September 29, 2011 at 9:57pm

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Basman, I think the simple fact is that our basic intuition tells us that if Douthat were suddenly an innocent suspect in a murder case, it would take him about 0.5 seconds, probably weeping in terror, to radically switch his philosophical position on the social benefit of occasionally executing people for crimes they did not commit. It's the obvious truth of this recognition that, I think, is clear to almost all posters here, and provokes their contempt. The right is always for capital punishment because they believe it will never happen to them. It's the nietzschean desire to be in the crowd hollering to burn the witch in the village square, because you believe you'll never be in that position.

- ironyroad

September 30, 2011 at 12:48am

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Douthat: "Simply throwing up our hands and eliminating executions entirely, by contrast, could prove to be a form of moral evasion — a way to console ourselves with the knowledge that no innocents are ever executed, even as more pervasive abuses go unchecked." We really need to allow people to keep starving to death. Because if we don't, then the whole issue of malnutrition may not get enough attention. It's too much to expect of people that they'd pay attention to both malnutrition and starvation unless we had at least a few people who actually starved. We have to have the most extreme examples of people not getting food in order to get us to care about everyone else who may not be getting enough food. So some have to starve to make up for our own moral failings and keep us on the ball!

- dsimon

September 30, 2011 at 1:01am

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Irony I'm not sure your point underlies the response to Douthat on this thread. I can't elaborate on that right now. dhurtado, same thing. I'll try to answer you when I have a bettr moment. Duty calls--ie getting some bills sent and older one sent paid. Ya' know what I mean?

- basman

September 30, 2011 at 10:01am

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"Douthart is not arguing that affirmatively and knowingly killing innocent people is justified by some public good." Yes and no. Thing is, we know that, eventually, someone innocent will be killed by the death penalty, it being unavoidably fallible as all human endeavors are. We already have killed innocent people, many times. So by accepting that the death penalty is fallible and also accepting that it's worth the cost, one (affirmatively and knowingly) accepts that we will be killing innocents for a "greater good." We may not know who they are, specifically, but we know that they exist and that we're killing them in the so-called interest of society. I don't see a meaningful distinction here. Your FDA example is intriguing, though I believe it's substantially different for a simple reason: we get to choose if we want to take a (prescribed) drug or not. The state doesn't and shouldn't force us to consume drugs and the user assumes the potential risks when they decide to do so. The same isn't true about our justice system; all people on US soil save diplomats to a certain extent are subject to it whether they like it or not and so there is no willing assumption of risk. I don't believe dropping the atomic bombs was justified since it knowingly killed and maimed civilians, even civilians who were a generation away through radiation. This was somewhat the point - to provoke fear and horror among the Japanese people in order to induce surrender. I believe that fits the definition of terrorism, now that I think about it.

- tealeaves

September 30, 2011 at 10:27am

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Irony- So you posit that if Douthart were wrongly convicted of a capital crime and were on death row, he would convert to being an opponent of the death penalty. Maybe so (though you cannot possibly know that he would not stand by convictions). But even so, that would not prove he is wrong any more than the maxim that there are no atheists in foxholes proves that there is a God. Dhurtado

- NR143296

September 30, 2011 at 12:46pm

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Dsimon- Douthat (sorry about referring to him as Douthart) is arguing that elimination of the death penalty will cause an erosion of due process safeguards because we won’t be worried about the fatal results of getting it wrong, and also that elimination of the death penalty may somehow cause us to worry less about prison conditions and abuses. I disagree with him as a factual and logical matter, but I don’t see why that kind of reasoning is “monstrous.” Nor do I think you have fairly applied his mode of reasoning to the issue of starving to death. I suspect he would say that we should strive to eliminate death by starvation in the world, but that the resources we spend on that goal should not be so great that it would require the diversion of resources to address other causes of human death. Dhurtado

- NR143296

September 30, 2011 at 1:06pm

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Recall, tealeaves, that you were comparing Douthat’s reasoning to the hypothesis that we should sterilize or even kill “lesser” humans for the good of the species. Douthat is not suggesting that we SHOULD kill innocent people for some greater societal good. In fact, he proposes changes that he believes would come close to eliminating the risk. But he is willing to accept some risk for what he believes is a greater good. I think there is a moral distinction between that and your Eugenicist, and I’ll use another war analogy: our military frequently goes on bombing missions knowing that there will be collateral killing of innocent non-combatants. They purportedly try as hard as possible to avoid or minimize “collateral damage,” but they know with virtual certainty that it will occur. The collateral damage is supposedly justified by some greater good (e.g., defeating the terrorists, who themselves are bent on murder). But if the military were to intentionally bomb a schoolhouse full of schoolchildren on the premise that it would serve some military or strategic objective (a la Hiroshima and Nagasaki), we surely would consider that monstrous. I have serious problems with the first scenario, but I nevertheless believe there is a moral distinction between “collateral damage” and direct and intentional killing. Which brings me to the Hiroshima/Nagasaki bombing, which was a massive equivalent of intentionally bombing a schoolhouse. My reaction to it is similar to yours. But why do we react that way? The putative justification was that it would save more lives than it would destroy. Do we simply disagree with that calculus, or do we think the action was immoral even if it saved more lives than it destroyed? If so, why? Regarding the FDA example, you are correct that no one is forced to take FDA-approved drugs. (Though I would argue that most consumers are not fully aware of the risk they are assuming – even if they are aware of the potential risks, they think the probability of their death is extremely remote, or else why would the FDA approve it?) But my point is that the FDA engages in the same type of calculus that Douthat engages in. The FDA knows with a particular drug that there is a substantial risk of death to a few (or perhaps not a few) consumers, but permits the drug to enter the market because it supposedly will save more lives than it destroys (or, to be more cynical, it will generate vast profits for the drug companies). Finally, let’s bring the analysis closer to home. I’ll pose again the question I posed above. If it could be demonstrated that the death penalty had a deterrent value that saved thousands of innocent lives per year, why would that not justify assuming the risk that a handful of innocent individuals would be executed each year? Remember, this is not the question of being willing to allow 100 guilty people to go free in order to avoid killing even one innocent person. It is a question of innocent lives vs. innocent lives. Dhurtado

- NR143296

September 30, 2011 at 2:15pm

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Dhurt -- yes, I agree that on the foxhole/atheist principle it is not to be proven that Douthat is wrong. But I wasn't trying to prove him wrong in that sense. I was trying to answer your question, which I mistakenly attributed to basman, about why the nature of the response to Douthat here is the way it is. But to your point immediately above: "If it could be demonstrated that the death penalty had a deterrent value that saved thousands of innocent lives per year, why would that not justify assuming the risk that a handful of innocent individuals would be executed each year?" This seems to be a fair question, but there is something wrong with the assumption set out at the beginning, and it's this: it can in fact be demonstrated -- one doesn't need a conditional scenario -- that the intentional homicide rate in other advanced industrial countries with an acceptable rule of law and no death penalty is lower than that in the United States, a country with capital punishment. To that extent, it seems that absence of the death penalty correlates with protection of innocent lives. What should the legal and policy conclusions be, in that case?

- ironyroad

September 30, 2011 at 2:55pm

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NR143296: "I don’t see why that kind of reasoning is 'monstrous.'" I don't believe I made the monstrous claim. "Nor do I think you have fairly applied his mode of reasoning to the issue of starving to death." Oh, I think it's absolutely fair. Just look at the quote I used. I think he's arguing that if we get rid of the most extreme errors of a system, then we'll become complacent about the rest of the system and so allow other flaws to perpetuate, so we need to continue to have the possibility of a worst case scenario to get us to work on the other problems. It seems inconceivable to him that perhaps we should eliminate the worst consequences of a flawed system and also work to correct other flaws as well. And I think it is an atrocious argument, if not a monstrous one. It is Douthat who is engaging in the "moral evasion" by positing that we are too weak to look at lesser abuses once we have resolved the greater ones.

- dsimon

September 30, 2011 at 4:02pm

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Sorry but I can't get excited about either side of the argument. I am against the death penalty in most cases, but I do support it in cases where there is more than one victim; for ideological murders; and for crimes against humanity. On the other hand I could see someone deciding to be put to death rather than spend their whole life plus 20 years in jail. I don't think I will ever be in a situation where I would need to make such a choice but I wouldn't belittle anyone who did. I am of course speaking to cases where the guilt is obvious to all; where there is visual or other manifest evidence; about someone like Ted Kazinski.

- arnon

September 30, 2011 at 5:54pm

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My thoughts on "collateral damage" are that we should start calling it for what it really is - unintentional murder. I agree with you that, in the same way that someone who drives recklessly and accidentally kills someone is not the same thing as someone poisoning their neighbor's food, dropping bombs from great heights and missing is not the same thing as Mai Lai. Intentions certainly matter. How this differs from the topic of capital punishment because, whereas unintentional murder is an inseperable part of war and war is sometimes necessary, executions of innocents is an inseperable part of capital punishment but capital punishment is a choice we've made. We choose to execute people. It is never thrust upon us. And when we make avoidable choices that we know will eventually kill innocent people, I find that unacceptable morally. We can make allowances for soldiers accidentally killing someone on the other side of a wall when a bullet goes through it because war is sometimes unavoidable but when we do something that we never have to do in the first place, we're culpable for the consequences which we can reasonably believe will follow from it. Your example of a death penalty in a fantasy world where it actually deterred people from committing crimes (and we're in agreement that it doesn't in reality) is a tricky one. I would have to say that, in this fantasy situation, we'd be remiss to abolish the death penalty since the choice was thrust upon us and we could be sure that it would save more lives than it would end - and only then if we had no other options that also somehow deterred crime, such as life imprisonment without the possibility of parole (LWOP). But as far as the example's usefulness in helping us resolve real-world scruples, I think it falls flat for a few reasons: 1) so far as we know, the death penalty in reality does not deter crime and so it is a choice we don't have to make; 2) we have other options besides the death penalty, such as LWOP; and 3) it's an unrealistic scenario where we know with certitude that it will work, how many innocent people will die and how many people it will save. The a-bombs are different because we chose to kill civilians instead of risk our soldiers' lives. Soldiers are a special case because they have volunteered their lives and know full well that they may be killed in combat. Choosing civilians over soldiers is not moral, nearly regardless of the ratio, unless the soldiers in question have been coerced into service. As an aside, you've definitely made me think long and hard about the subject and I thank you for that.

- tealeaves

September 30, 2011 at 5:55pm

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"Finally Douthat concludes his case against the abolition of capital punishment: “And while it would put an end to wrongful executions, ...”—but who cares how a sentence that begins this way ends?" What a great line.

- josh_y

October 1, 2011 at 2:12am

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"To that extent, it seems that absence of the death penalty correlates with protection of innocent lives. What should the legal and policy conclusions be, in that case?" In that case, irony, the legal and policy conclusion, in my view, is that the death penalty should be abolished. That is in fact what I believe. But note that you have addressed my hypothetical scenario not by attacking the mode of analysis, but by arguing that the premise is not factual. That's how we should be addressing Douthat's argument, rather than by attacking his mode of analysis as somehow immoral. Most of the posters here are doing the latter. Dhurtado

- NR143296

October 1, 2011 at 10:16am

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Dsimon, here is the quote you used: "Simply throwing up our hands and eliminating executions entirely, by contrast, could prove to be a form of moral evasion — a way to console ourselves with the knowledge that no innocents are ever executed, even as more pervasive abuses go unchecked." Since you took the liberty of rephrasing the quote to comply with your interpretation of it, I will take the liberty of rephrasing it to comply with what I think is an at least equally plausible interpretation (informed by the Douthat’s later statement that we should take measures to reduce the incidence of capital punishment and to increase the safeguards against wrongful convictions/executions): [We should work to eliminate the risk of executing innocent persons. But, if instead of working to reform the system, we simply throw our hands up and eliminate capital punishment, that will cause us to neglect needed reforms in our criminal justice system because the stakes will no longer be as high. That might impose a social cost that is greater than the risk of some wrongful executions.] I don’t agree with Douthat’s hypothesis. I would at least like to believe that we as a people are more responsible than that. Perhaps Douthat’s real sin is that he has insufficient faith in the moral fiber of the polity. But his argument is not intrinsically immoral. Dhurtado

- NR143296

October 1, 2011 at 10:57am

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Thanks for your thoughts tealeaves. I generally agree with everything you said in your last post, except that I am not so sure it can be said in all cases that war is thrust upon us. My ultimate point is that, whether in war or other contexts, we often make the caculus that a certain action posing the risk of the loss of innocent life is warranted because it will save more innocent lives than it might destroy. The debate should be over whether the calculus is correct, not whether it is moral to engage in the calculus at all. Dhurtado

- NR143296

October 1, 2011 at 11:25am

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If anyone comes back here, and not wanting to retread on tord ground, I say that this is incorrect: ...But note that you have addressed my hypothetical scenario not by attacking the mode of analysis, but by arguing that the premise is not factual. That's how we should be addressing Douthat's argument, rather than by attacking his mode of analysis as somehow immoral. Most of the posters here are doing the latter... The mode of analysis for a critique of the overall argument cannot be separated from the factual premises it proceeds from nor from what is the case factually regardless of whether what is the case informs the original premises. So it is no answer, I'd argue, to the reaction to Douthat's column to say his mode of analysis--let's say it's entirely cost benefit--has a great and hallowed tradition. The factual premises and real world facts include that capital punishment is not a deterrent and that inevitably mistakes will be made so that innocent people will be killed--not murdered, killed. On those bases, Douthat's the central critique of consequentialism, that it negates moral agency and moral consideration, comes to the fore. And that I think is the underlying revulsion to Douthat's argument--his relative sanguinity over an unnecessary death, stipulating that Davis was innocent for the sake of argument, by looking to consequences that are insignificant in comparison. Doythat raises the very two complaints I originally touched on: 1. the inappositeness here of a cba; and 2. the utter of failure of his argument in cba terms. It's not that if faced with being on death row Douthat would jettison his analysis. That's not the test of the merits of a position. Finally, that's why your hypothetical positing of the death penalty as a deterrent is of no moment here. It's not a deterrent. And again that it's not is part of what infects Douthat's arguments.

- basman

October 1, 2011 at 12:52pm

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p.s. I just finished reading some stuff on Freud and so was interested to analyse ironyroad's mistaken attribution to me something Dhurtado said in those terms. I double checked and it's clear: ironyroad wants to kill me and sleep and with dhurtado.

- basman

October 1, 2011 at 12:55pm

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p.s. Isn't the point of A Modest Proposal precisely the horrifics of an aberrant consequentialism? The proposals arguments and conclusion follow logically from the premise. But the mode of analysis is rife for satire.

- basman

October 1, 2011 at 1:16pm

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ironyroad, for his part, would note that a Freudian reading of basman's typo 'tord' in the first line of his post might well point to something between 'trod' and 'turd,' which in turn suggests basman's unconscious fear of stepping in it. :)

- ironyroad

October 1, 2011 at 2:08pm

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Basman- The fact the mode of analysis cannot be separated from its factual premises for the purpose of implying the correct conclusion does not mean they are analytically indistinct. A mode of analysis could be sound, but nevertheless yield an incorrect result if the factual premises upon which it is based are invalid. Conversely, the fact that one’s argument is based on invalid premises does not necessarily imply that the mode of analysis is invalid. Respectfully, I think my hypothetical is of great moment because it can help crystallize what it is about Douthat’s argument that we object to: Do we think he is wrong to even ask the question whether the abolition of the death penalty would impose social costs that outweigh the risk of killing innocent persons, or do we simply think he is wrong in his measurement of the cost of abolishing the death penalty? You may say you think he is wrong on both counts, but if you think he is wrong to even ask the question, then I would like to know why. I am disappointed that you will not even answer my hypothetical. To say the factual premise of my hypothetical could never be true is not an adequate answer, because the purpose of the hypothetical is test our moral compass, and to perhaps provide a moral framework for the discussion. Moreover, it is not inevitably true that capital punishment is not a deterrent. In a regime in which capital punishment was administered for all first degree murder convictions, and administered swiftly and with certainty, it seems plausible to me that it would be a significant deterrent, albeit perhaps at too high a cost. Dhurtado

- NR143296

October 1, 2011 at 5:24pm

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Don't mean to disappoint you dhurtado but then again it's you who gets to sleep with ironyroad. My impression is respectfully that you are over thinking, or over intellectualizing, the reaction against Douthat's column. Sure premises and ensuing reasoning are analytically distinct. So what here? Same thing with good premises leading to bad or faultily reasoned conclusions or flawed premises yielding logically consistent but flawed conclusions. So what? There's nothing wrong with asking as such: ...whether the abolition of the death penalty would impose social costs that outweigh the risk of killing innocent persons, or do we simply think he is wrong in his measurement of the cost of abolishing the death penalty?... But the way in which Douthat does his measuring, which constitutes his arguments and what is taken objection to by Wieseltier and generally by the commenters on the thread, I think, waylay the distinction you are trying to argue for. Your hypothetical, in which I’m not inclined to engage, entails competing oughts. There are no competing oughts against the state's taking of innocent life that Douthat makes the semblance of a case for. But he goes with on a consequentialist reckoning regardless positing foolish and perhaps self contradictory social goods as outweighing that taking of innocent life. (That one side of the scale is the state’s taking of innocent life is what reminds me of A Modest Proposal as apt here.) It may be that as a result of your questions I'm refining my objections some to Douthat. I haven't tried to think that through. But I do think I'm still pretty close to where I started on initially reading Douthat and then reading Wieseltier on him.

- basman

October 1, 2011 at 7:20pm

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You mean ironyroad gets to sleep with me, don't you? :-) I may be over-thinking it, but I think a lot of the argument on this thread is a sophisticated (indeed well written) form of ad hominem argument. It doesn't actually demonstrate that Douthat is wrong. He IS wrong, in my view, but passing moral judgment on him does nothing to make the case. Btw, I don't know what A Modest Proposal is. Perhaps I will educate myself and then have a reaction. Dhurtado

- NR143296

October 1, 2011 at 9:35pm

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...You mean ironyroad gets to sleep with me, don't you?.. Have it your way. Jonathan Swift's A Modest Proposal" A MODEST PROPOSAL For preventing the children of poor people in Ireland, from being a burden on their parents or country, and for making them beneficial to the publick. by Dr. Jonathan Swift ....I do therefore humbly offer it to publick consideration, that of the hundred and twenty thousand children, already computed, twenty thousand may be reserved for breed, whereof only one fourth part to be males; which is more than we allow to sheep, black cattle, or swine, and my reason is, that these children are seldom the fruits of marriage, a circumstance not much regarded by our savages, therefore, one male will be sufficient to serve four females. That the remaining hundred thousand may, at a year old, be offered in sale to the persons of quality and fortune, through the kingdom, always advising the mother to let them suck plentifully in the last month, so as to render them plump, and fat for a good table. A child will make two dishes at an entertainment for friends, and when the family dines alone, the fore or hind quarter will make a reasonable dish, and seasoned with a little pepper or salt, will be very good boiled on the fourth day, especially in winter...

- basman

October 1, 2011 at 11:18pm

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"Since you took the liberty of rephrasing the quote to comply with your interpretation of it..." I think you're trying to save Douthat from himself. So what if Douthat says that we should work to reduce the incidence of wrongful convictions, and thereby the incidence of wrongful executions. There is no reason why we cannot do both: eliminate the chance of the government wrongfully killing a person in the criminal justice system, and work tirelessly to stop wrongful convictions generally. There is no necessary connection between the two. Just look at the attention given to mistaken eyewitness testimony recently. Surely some people should not have to suffer government-sanctioned death to produce some reforms. And if we fail to produce those reforms, it should be our burden, and innocent people should not be forced to pay the "ultimate price" just to motivate us. "if instead of working to reform the system, we simply throw our hands up and eliminate capital punishment, that will cause us to neglect needed reforms in our criminal justice system because the stakes will no longer be as high. That might impose a social cost that is greater than the risk of some wrongful executions" Well, isn't that exactly my analogy of how we need to allow people to stave because unless we have such high stakes then we might not pay attention to malnutrition overall which might impose a social cost that is a greater risk than the risk of some people starving to death? I did not say that Douthat's argument was "intrinsically immoral." (I don't know why you keep imputing judgments to me that I never made.) I just think it's very, very wrong.

- dsimon

October 2, 2011 at 10:03am

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Dsimon- If you claim a distinction between "I think it is an atrocious argument, if not a monstrous one," on the one hand, and "instrinsically immoral," on the other, I won't belabor the point. My point is that Douthat's argument should be engaged on the merits rather than with ad hominem epithets. And you begin in your last post to engage the merits of the arguments. I agree with you that we should be able to both eliminate the death penalty and minimze the risk of erroneous non-capital convictions, improve prison conditions, etc. But, the fact that you, Wieseltier, I and others here disagree with Douthat on that score doesn't support a personal attack. As to your analogy, I am not persuaded. Douthat is not arguing that the execution of innocents is necessary for the greater public good that he envisions. He would be perfectly happy to see the system reformed so as to eliminate the execution of innocents. His argument is that the RISK of the execution the innocents will impel us to refine the criminal justice system to the benefit of both capital and non-capital defendants. Dhurtado

- NR143296

October 3, 2011 at 10:46pm

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Basman- As I stated in my response to dsimon, Douthat is not arguing for even one killing of an innocent human. He is arguing that the risk of killing innocents may animate systemic changes, the value of which outweigh the risk. He argues that abolition of the death penalty will cause us to focus even less on the problems of overzealous cops and prosecutors, the limits of the appeals process, and the ugly prison conditions that are faced by some 2 million prisoners in American prisons. He further argues that it will undermine public confidence in our criminal justice system because it will be an admission that the system is irretrievably flawed. And it will deprive us of the retributive value of capital punishment for heinous crimes. On the other hand, he argues, maintenance of the death penalty while focusing on reforms that will minimize if not virtually eliminate the risk of erroneous executions, will reduce the incidence of not only erroneous capital convictions, but of other erroneous convictions as well. On balance, then, Douthat concludes that “while [abolishing the death penalty] would put an end to wrongful executions, it might well lead to more overall injustice.” I disagree with him as a factual matter, but it is hardly analogous to a proposal that we kill and eat 100,000 babies so as to relieve their parents of the financial burden. Dhurtado

- NR143296

October 3, 2011 at 11:01pm

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Dhurtado: 1. When you drill down he is arguing for the killing of innocent people, in effect, because he stipulates that there will be mistakes but that capital punishment should go on regardless because the benefits accruing from precisely that inevitable consequence will outweigh the "cost" of their deaths. 2. Then dealing with the arguments you isolate and paraphrase they make, his bane is his flawed arguments. As a general matter they are speculative, empirically unsupportable and exclude middles. This is what he puts against the inevitable killing of some innocents. 3. My characterization is evident in your very language, "may animate systemic changes." So his argument that we need innocent deaths to focus sufficiently on overzealous cops is pure empirically unsupported surmise. Plus as been noted on this thread, his arguments excludes the middle that the mischief of overzealous cops and prosecutors, appeal limits, ugly prison conditions faced by two million prisoners cannot be dealt with and reformed short of innocent deaths. We must martyr the innocents as means of achieving reforms 4. The argument about undermining public confidence as you paraphrase it is really a dumb one and seems to defy logic. Public confidence cannot rest on myths. It must flow from reality. The fact is that innocents are killed is a problem vast enough so that quite a few states on this basis have abolished the death penalty. That is a responsive policy decision to a necessarily imperfect system causing mistaken death. Where is the evidence in those states of waning public confidence? So more unsupported surmise on Douthat's part as well as the assumption that we need to perpetuate these errors to sustain public confidence. And more either/or too. The mature public will know that mistakes happen and humans and their systems including the administration of criminal just are fallible. That understanding does not undermine public confidence, it tempers it, gives it adult perspective. The notion of undermining is a leap overt hat middle ground. On the other hand, maintaining capital punishment will have people knowing that fallibility breeds innocent life being taken. Now that is where real undermining can issue from. 5. The loss of the retributive benefit of capital punishment is the closest he comes to making a serious argument. And if he simply argued this ground for it he would not I do not believe have aroused the Wieseltier's and this thread's anger and bemusement. As it happens, this argument too smacks of surmise and false binaries. The surmise is apparent in the abstraction of the retributive benefit. It is by its nature not measurable. Plus who is to say that life in prison without parole does not pack adequate retributive punch. While we wait for someone to demonstrate adequately the necessity for the retributive consequence of the death penalty, let’s keep the innocents alive. 6. If I missed an argument or two forgive me. Now I understand that you disagree with Douthat. One way of putting our issue is whether his piece as supplemented by his notes deserves our contempt as articulated by Wieseltier and on this thread. I suggest to you that I have shown why it does. Finally the willingness to sacrifice innocent life on the altar of such wispy, speculative, unsupported and logically flawed arguments is precisely, I argue, what makes Swift's satire to the point here: consequentialist reckoning (which is flawed in its own analysis to boot) flying over the avoidable immorality of taking innocent life albeit by necessary effect and not by intention.

- basman

October 4, 2011 at 1:33pm

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Dhurtado: 1. When you drill down he is arguing for the killing of innocent people, in effect, because he stipulates that there will be mistakes but that capital punishment should go on regardless because the benefits accruing from precisely that inevitable consequence will outweigh the "cost" of their deaths. 2. Then dealing with the arguments you isolate and paraphrase they make, his bane is his flawed arguments. As a general matter they are speculative, empirically unsupportable and exclude middles. This is what he puts against the inevitable killing of some innocents. 3. My characterization is evident in your very language, "may animate systemic changes." So his argument that we need innocent deaths to focus sufficiently on overzealous cops is pure empirically unsupported surmise. Plus as been noted on this thread, his arguments excludes the middle that the mischief of overzealous cops and prosecutors, appeal limits, ugly prison conditions faced by two million prisoners cannot be dealt with and reformed short of innocent deaths. We must martyr the innocents as means of achieving reforms 4. The argument about undermining public confidence as you paraphrase it is really a dumb one and seems to defy logic. Public confidence cannot rest on myths. It must flow from reality. The fact is that innocents are killed is a problem vast enough so that quite a few states on this basis have abolished the death penalty. That is a responsive policy decision to a necessarily imperfect system causing mistaken death. Where is the evidence in those states of waning public confidence? So more unsupported surmise on Douthat's part as well as the assumption that we need to perpetuate these errors to sustain public confidence. And more either/or too. The mature public will know that mistakes happen and humans and their systems including the administration of criminal just are fallible. That understanding does not undermine public confidence, it tempers it, gives it adult perspective. The notion of undermining is a leap overt hat middle ground. On the other hand, maintaining capital punishment will have people knowing that fallibility breeds innocent life being taken. Now that is where real undermining can issue from. 5. The loss of the retributive benefit of capital punishment is the closest he comes to making a serious argument. And if he simply argued this ground for it he would not I do not believe have aroused the Wieseltier's and this thread's anger and bemusement. As it happens, this argument too smacks of surmise and false binaries. The surmise is apparent in the abstraction of the retributive benefit. It is by its nature not measurable. Plus who is to say that life in prison without parole does not pack adequate retributive punch. While we wait for someone to demonstrate adequately the necessity for the retributive consequence of the death penalty, let’s keep the innocents alive. 6. If I missed an argument or two forgive me. Now I understand that you disagree with Douthat. One way of putting our issue is whether his piece as supplemented by his notes deserves our contempt as articulated by Wieseltier and on this thread. I suggest to you that I have shown why it does. Finally the willingness to sacrifice innocent life on the altar of such wispy, speculative, unsupported and logically flawed arguments is precisely, I argue, what makes Swift's satire to the point here: consequentialist reckoning (which is flawed in its own analysis to boot) flying over the avoidable immorality of taking innocent life albeit by necessary effect and not by intention.

- basman

October 4, 2011 at 1:35pm

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Sorry for the duplication.

- basman

October 4, 2011 at 1:36pm

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What's the rule: last post/word wins?

- basman

October 6, 2011 at 9:47pm

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"What's the rule: last post/word wins?" If that's the rule, let's abolish it. :-) It will lead to the endless beating of dead horses. As to your last substantive posts, I have the following responses: 1. I think we have a fundamental disagreement about how Douthat’s argument can correctly be characterized. I do not agree that he is “arguing for the killing of innocent people,” or arguing that benefits will accrue from the execution on innocent people. He is arguing that benefits will accrue from the RISK that innocent persons will be executed. Those benefits will accrue even if it turns out that there are zero executions of innocent people. I think it is fair to say with a great deal of certitude that there are significant numbers of persons who are imprisoned for crimes they did not commit. We generally accept that risk with a penal system justice because otherwise it would be very difficult to enforce criminal laws. Does that mean we WANT innocent people to be imprisoned or that we think benefits will accrue from imprisoning innocent people? Of course not. But the RISK of imprisoning innocent people might impel us to create enhanced due process safeguards. 2. When you compare the risk of killing innocents with Douthat’s supposed counterweights, you are now engaging his argument on the merits. And I agree with you that they are speculative and empirically unsupportable. 3. Here, you resort again to mischaracterizing Douthat’s argument. He does not argue that we need innocent deaths. He argues that the risk of innocent deaths will impel us to improve the criminal justice system. Nor does he argue that the risk of innocent deaths is the ONLY means of achieving reforms. 4. Here you have returned to engaging Douthat on the merits, and I agree with you that the public confidence argument is not persuasive. One quibble with you is that Douthat does not argue that we need to perpetuate the errors in order to sustain public confidence. He argues that, instead of abolishing the death penalty, we should implement reforms that would minimize or eliminate the occurrence of innocent deaths. 5. Actually, my view is that “retributive benefit” has no place at all in a system of criminal justice. In my outlining of Douthat’s counterweights, I am not agreeing with them, I am merely attempting to describe his cost/benefit analysis. That said, the fact the certain values cannot be quantified or measure does not mean they should not be considered in making a cost/benefit analysis. My effort here has been to shift focus to the merits of Douthat’s cost-benefit analysis, and away from personally attacking him for engaging in the analysis at all. I think I have modestly succeeded in that regard. As to this: “the willingness to sacrifice innocent life on the altar of such wispy, speculative, unsupported and logically flawed arguments is precisely, I argue, what makes Swift's satire to the point here: consequentialist reckoning (which is flawed in its own analysis to boot) flying over the avoidable immorality of taking innocent life albeit by necessary effect and not by intention.” Sorry. I can’t buy that one Basman. First, as I have argued, accepting the risk of innocent death is morally distinct from affirmative action to cause death. Second, Douthat’s ultimate argument, though in your and my view empirically incorrect, is that abolition of the death penalty will destroy more lives than it will save. Imho, that is not analogous to an argument that 100,000 babies should be executed in order to ease the financial burden on their parents. That kind of hyperbole undermines your argument. Dhurtado

- NR143296

October 7, 2011 at 5:27pm

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Dhurtado this is a good exchange and I will say more at a better moment. But two not so brief points just for the moment (not following any numbering): 1. I want to make it emphatic that I'm not saying Douthat is for killing innocents as such and therefore your distinction--"First, as I have argued, accepting the risk of innocent death is morally distinct from affirmative action to cause death"--is otiose. My point is that he starts from the premise that innocents will die and goes from there. So you're going on that I am saying otherwise is beside and below my point. 2. You're being too literal and I'm guessing--I don't mean to be presumptuous or insulting--that you weren't a Lit major. I'm not saying that Douthat's argument is analogous to a proposal calling for 10,000 children to be killed. I'm suggesting, rather, that the kind of reasoning Swift savages, say calling for 10,000 children to be killed by a series of logical and self consistent arguments, oblivious of their morally monstrous premise, is analogous, though different in degree, obviously, to Douthat’s argument(s) in that Douthat starts with the killing of innocents as a given and then makes terrible arguments in trying to find a righteous counterweight to that given. It's reasoning that is effectively oblivious, it seems to me, to the loss of innocent life ("and... he's dead," as Wieseltier's riff goes.) Douthat raises two targets worthy of criticism: one is his terrible arguments; that leads rightfully to making him a target of criticism as well given the stakes framing his argument(s.) Anywho, I'll deal more specifically with your points, as I say, at soon better time. When I feel I’m just repeating myself, I’ll suggest we call it a day.

- basman

October 7, 2011 at 9:55pm

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Basman, this is what you said: "When you drill down [Douthat] is arguing for the killing of innocent people, in effect, because he stipulates that there will be mistakes[.]" How is that different from saying "Douthat is for killing innocents"? My statement that "accepting the risk of innocent death is morally distinct from affirmative action to cause death" is a direct rejoinder yours. If you now accept the moral distinction, then your analogy to the Modest Proposal does not hold up, not only because of a difference in degree, but because the Modest Proposal is that innocents be affirmatively killed. Dhurtado

- NR143296

October 8, 2011 at 12:45am

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Hi Basman. After posting, I noticed that you said you are "not saying that Douthat's argument is analogous to a proposal calling for 10,000 children to be killed." Rather, you are saying that the kind of reasoning underlying the Modest Proposal is analogous to Douthat's. But I thnk my response still applies. The calculus underlying the Modest Proposal is monstrous not because it employs a consequentialist analysis, but because it posits that the benefit of relieving poor people of the burden of supporting their children outweighs the cost of killing 100,000 babies. If Douthat were empirically correct about his postulated results of abolishing the death penalty (and, again, I do not think he is), then, unlike the Modest Proposal, his consequentialist analysis would at least be worthy of consideration. Dhurtado

- NR143296

October 8, 2011 at 10:23am

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carved out some time this thanksgiving and yom kipur (now over) weekend to offer you a reply, fwiiw.

- basman

October 10, 2011 at 12:56pm

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Dhurtado I feel that to some extent I’ breathing my last gasps here as I can some hair splitting on the horizon. But I’ll give it this one last stab. Again there’s no magic to my numbers, I’m not using your or my previous numbering. I’m just trying to indicate different points as I go through your posts. I’m not going to answer every point made. 1. First split hair: is Douthat for, arguing for, killing people? Sure he is and while putting it that it’s the risk of killing innocent people that generates benefits rather than killing them may be a tad more precise, I find the distinction thin. The risk of killing them is bound up with the inevitability that innocent people get killed. It’s all the same matzo ball. And in that regard, and for the umpteenth and I had said that he “effectively” was calling, for arguing for the killing of innocents. I can’t see any way around that. Sure he doesn’t want innocents t killed. But what he wants is not much to the point. The killing of innocents, it’s common ground, is inevitable but avoidable by ending capital punishment and putting in its place life without parole, say, no trip through the woods. So the death of innocents is the avoidable necessary effect of what he’s for—capital punishment. The risk of innocent people being executed stems from the fact that they get executed and all too many times, that frequency arising from poverty and so from effectively differential treatment based on race and class that informs part of your very understandable objection to it. A foolproof determination of guilt eliminates risk. Absent foolproof, risk comes reality—one big matzo ball. 2. Sorry but your argument, if it is one,I’m not sure, that risk is part of the criminal justice (which is of course true) and therefore we can read that pervasive truth in the argument for capital punishment doesn’t work. And it can be turned back against your defence of Douthat. We don’t want to imprison innocents, granted. But we have no alternative to something like jailing criminals. Therefore we in good conscience accommodate that ugly occurrence and so our best to mitigate it and we can remedy it and even provide compensation when mistakes occur. That is one thing. But as I said capital punishment entirely distinguishable from that one thing in that it is desirably and eminently avoidable—desirable on principled and pragmatic grounds. And of course as I said before, the absurd argument that capital punishment spurs otherwise not occurring heightened vigilance and safeguards excludes the middle, which you give assent to, that we don’t need it for heightened vigilance and safeguards. We should always be aiming at those. In a word, Douthat owns the effects of what he argues for. 3. I’m either being too subtle or vaporous. The issue is not no cba. And the issue is not that arguments can’t be put against the death penalty. The issue is what is being argued. There are no merits to Douthat’s arguments. They are all wisp in relation to the death of innocents. One has to “engage” his arguments of course to understand their fatuity. But that’s not the same as attending to his arguments and not to him. No: rather, the weightlessness of his arguments given the stakes framing them that has led to the rightful intellectual scorning of him in this instance. 4. I understand, I repeat, that you don’t endorse Douthat’s arguments, including capital punishment. Yours is the tasking of lifting them, him from the intellectual scorn aimed at him and them. On retribution as part of criminal sentencing, we disagree profoundly, Douthat put to the side. I’m not going to get into that here. No doubt we can get it to it sometime down the road, not least because I feel so strongly it has an absolute and important place. I’m going to leave it there dhurtado not least because I defied my own stricture against repeating myself. But you have been so earnest and energetic in your good faith arguments for your position, that I felt it would have been disrespectful and inappropriately dismissive not to have answered you thus. I’ll leave each of us to our own views of whether A Modest Proposal is apt here. I suspect that our views of its applicability are conditioned by the views we take of Douthat here as displays himself in his arguments for capital punishment.

- basman

October 10, 2011 at 3:27pm

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No one writing opinion today has a greater talent than Leon Wieseltier for embedding his points in a blizzard of showy syllables. And so it is with his broadside against Ross Douthat in the matter of the trial and execution of Troy Davis. (The Casuist, 10/20/2011) He correctly summarizes Mr. Douthat’s argument that we should retain the death penalty because it excites intense interest and thus provides us with an effective vehicle for exposing and agonizing over and, perhaps, reforming an imperfect criminal justice system. LW says this is absurd, and I agree. But he is four- fifths of the way through his column before we finally learn what is his special distaste for this particular absurdity. It is that Mr. D seems more interested in crafting an internally consistent abstraction than in the practical consequences of his argument. Thus: Mr. D’s commentary is “the work of a man for whom debate is all, who should tear himself away from his laptop and get out more, who lives in rapture of points and counter-points that passes for intellectual life for too many opinion journalists…. Douthat’s clever little discourse is lacking in a certain degree of acquaintance with life…. Something happened in the world that embarrassed Douthat’s worldview. He could have chosen to meet the contradiction honestly, to acknowledge the intellectual dissonance…. Instead he chose to protect his worldview, and secure it against empirical shock.” Earlier, Mr.W breezily commits the exact same error, but with much more brevity. “[A]ny reader of the coverage of Davis’s failed attempt to avoid the death penalty for his improper conviction…[must concede] that the case against Davis was riddled with dubieties and uncertainties. The state of Georgia likely killed an innocent man.” Mr. W has obviously gotten his information from reading a hopelessly lazy and biased media which in turn, for fifteen years, swallowed whole everything offered up by Amnesty International, for whom opposition to the death penalty generally has served as a justification for lying about this case specifically. Had Mr. W been willing to tear himself away from his laptop and get out more, he might have learned that every substantive point made by AI and Davis’s lawyers is at best misleading and at worst an outright lie. He would have learned that those dubieties and inconsistencies were never actually in the case, but were cynically manufactured and masterfully marketed by Davis’s advocates after the fact. He would have seen that these dubieties and uncertainties were tested in multiple courts and found wanting. But his clever little attack on Mr. D’s sophistry – itself awash in points and counter-points -- lacks a degree of acquaintance with life. Something happened (Davis’s execution – in Georgia, of course) that embarrassed Mr. W’s view of how the world should work. Let’s pause here to look at the matter of Mr. W’s worldview. His citation of “dubieties and inconsistencies,” together with his easy characterization of the conviction as “improper” and Davis as “likely innocent” invites the conclusion that if Davis were not innocent, but guilty, and had been properly convicted without dubieties and inconsistencies, the death penalty would have been appropriate. But his obvious and intense anger at Mr. D permits a suspicion that he doesn’t countenance any degree of certainty as sufficient to permit the death penalty. In either case, Davis’s execution is an embarrassment to Mr. W’s view of how the world should work. He could have chosen to meet the contradiction honestly, to acknowledge the intellectual dissonance. Instead he chose to protect his worldview, secure it against the empirical shock of the actual record in the case, and shred Mr. D, like an ape jumping and yelling and tearing branches off a tree limb to avoid the confrontation that is otherwise inevitable. An affliction of far too many opinion journalists. I mentioned the actual record. AI and the lawyers loudly claimed that 7 of 9 eye witnesses recanted. In fact, there were four people who were eye witnesses in the sense of specifically identifying Davis in testimony at trial as the man they saw shoot the officer. One of these refused to give a recantation; one gave an affidavit of recantation which she would not swear to and which did not in fact contradict her trial testimony; another one’s “recantation” didn’t actually contradict his trial testimony; and the fourth gave a direct recantation, but when she was later available to testify in person at a hearing requested by Davis’ lawyers for that purpose, they declined to call her as a witness -- she would have been subject to cross examination. (Other witnesses had identified Davis in terms of the shooter=s clothing, participation in the original altercation with the homeless man, etc.) The recantation evidence has had 14 appearances before 6 courts, including 5 trips to the U.S. Supreme Court, and at 3 clemency hearings. In 2010 a hearing was held in federal district court, ordered by the U.S. Supreme Court in an extraordinary ruling. Davis was to have the opportunity to present any and all witnesses he might choose, to give live testimony. His lawyers made a mockery of the opportunity. Judge William Moore carefully analyzed all of their testimony and the out-of-court recantations, individually and taken together. He concluded that Davis= case was Alargely smoke and mirrors,@ and that “Mr. Davis is not innocent.@ Over-enthusiastic advocacy also gave rise to the claim that there was no physical evidence at the trial. That’s true, unless you count crime lab ballistics linking Davis to an earlier unrelated shooting and to the murder of the police officer. For readers who may be interested in “the other side of the story” in the Davis case – which they can be guaranteed not to have heard before, a modest attempt of my own can be found at http://savannahnow.com/column/2011-10-06/column-spencer-lawton-troy-davis-fairly-convicted-not-railroaded#.TqDO1bKNOuI . Spencer Lawton District Attorney (Retired) Eastern Judicial Circuit of Georgia

- dtglaw

November 7, 2011 at 3:07pm

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