The death penalty is not nearing its end, redux

The NYT has another editorial on the collapse of the death penalty. Although the editors note that California, Oklahoma, and Nebraska voted to retain the death penalty, they contend that the overall trend is “toward growing discomfort with state-sanctioned killing.” This is true to a certain extent, insofar as a majority of American disapprove of the punishment. However, as is the case in presidential elections (and just as lamentably), majorities do not decide much of anything. Since capital punishment is quite popular in the few jurisdictions in which it is practiced, abolition will be a nationwide phenomenon only when SCOTUS says so. And since Breyer is the only justice to call the constitutionality of execution into question, that day is likely a long way off.


The death penalty is not yet nearing its end

Back in the more optimistic days of October, likely anticipating a new Hillary Clinton appointed Supreme Court justice, the New York Times opined that the death penalty is nearing its end.

This isn’t our first abolitionist rodeo, and we had reason to be skeptical of the Times’ claims. The subsequent electoral catastrophe blew most conventional wisdom out of the water, the death penalty ballot initiatives being no exception. (Trump’s Supreme Court pick will likely defend the constitutionality of capital punishment. But this actually ranks fairly low on my worries regarding his selection.)

Nebraskans voted to override the legislative repeal — which survived the Governor’s veto! — of capital punishment. Californians rejected abolition by 54%. Oklahomans affirmed that the death penalty does not constitute cruel and unusual punishment. (For more, see John Blume’s post here.)

But while retentionists went three for three, support for the death penalty continues to decline, as I noted in my previous post, and the number of executions continue to drop. 2016 is likely a detour on the abolitionist path. I wish I could be so sanguine about our democracy more generally.

A majority of Americans no longer support capital punishment

Tis the season to take polls with a healthy dose of skepticism, but…

“For the first time in almost half a century, support for the death penalty has dipped below 50 percent in the United States. Just 49 percent of Americans say they support capital punishment,according to a Pew Research Center poll conducted from late August to early September. That represents a seven-point decline in about a year and a half. Support peaked at 80 percent in 1994. The death penalty has had majority support among Americans for 45 years. The last time support was as low as it now stands was in 1971.”

via NYT

What’s Wrong with Differential Punishment?

My paper, “What’s Wrong with Differential Punishment,” is forthcoming in Utilitas. My answer is that differential punishment is racially oppressive. This is not terribly surprising, but the paper argues that 1. retributivists should care about d/p qua retributivists, and that 2. those retributivists who do care about d/p do so for the wrong reasons.

Anthony Reeves and John Pittman provided helpful comments on drafts. I also learned a lot from conversations at the fabulous BGSU Workshop on Policing and Prisons.

When juries say life and judges say death

Alabama is the only state with judicial overrides in capital cases. The law was originally mean to protect defendants, but has turned out to do the opposite. Alabama judges have converted death sentences to life 11 times, and life sentences to death 101 times. Not surprisingly — Alabama judges are elected, not appointed — these override cases involve a disproportionate number of wrongful convictions.

via NYT

New study of systemic issues in the 16 counties that produce a disproportionate number of death penalty cases

From the Death Penalty Information Center:

As states and counties across the United States are using the death penalty with decreasing frequency, a new report issued by the Fair Punishment Project on August 23 explores the outlier practices of 16 U.S. counties that are bucking the national trend and disproportionally pursuing capital punishment. These jurisdictions, representing one-half of one percent of all U.S. counties or county equivalents, are the only locales in the United States to have imposed five or more death sentences since 2010. Six of the counties are in Alabama and Florida, the only two states that still permit non-unanimous death verdicts. Five are located in highly-populated Southern California counties that have been the focus of repeated allegations of prosecutorial misconduct. The others include Caddo (LA), Clark (NV), Dallas (TX), Harris (TX) andMaricopa (AZ), all of which have been criticized for systemic inequities in their administration of the death penalty. Part one of the report examines the “systemic deficiencies” that contribute to the high number of death sentences in these counties and provides detailed analysis of the circumstances in 8 of the counties (a second part of the study, examining the remaining 8 counties, will be released in September). The report finds that these counties frequently share at least three types of structural failings: “a history of overzealous prosecutions, inadequate defense lawyering, and a pattern of racial bias and exclusion.” The study found that these in turn “regularly produce two types of unjust outcomes which disproportionately impact people of color: the wrongful conviction of innocent people, and the excessive punishment of persons who are young or suffer from severe mental illnesses, brain damage, trauma, and intellectual disabilities.”

For each of the counties, researchers looked at the percentage of cases in which prosecutorial misconduct was found, noting that about one in seven cases involved a finding of misconduct by an appellate court. One county, Clark County, Nevada, had a finding of misconduct in 47% of cases. In exploring the issue of inadequate defense, researchers found that lawyers spent less than one day, on average, presenting mitigating evidence to persuade penalty-phase jurors to impose a sentence less than death. Though little mitigation was presented, nearly half (44%) of defendants sentenced to death in the outlier counties had an intellectual disability, brain damage, or severe mental illness. The authors write, “This is what capital punishment in America looks like today. While the vast majority of counties have abandoned the practice altogether, what remains is the culmination of one systemic deficiency layered atop another.”

Find the Fair Punishment Project’s report here.


“Kant’s Demonstration of Free Will, or How to Do Things with Concepts”

“Kant’s Demonstration of Free Will, or How to Do Things with Concepts” has been accepted for publication by the Journal of the American Philosophical Association. Typset version to follow.


Kant famously insists that free will is a condition of morality. The difficulty of providing a demonstration of freedom has left him vulnerable to devastating criticism: critics charge that Kant’s post-Groundwork justification of morality amounts to a dogmatic assertion of morality’s authority. My paper rebuts this objection, showing that Kant offers a cogent demonstration of freedom. My central claim is that the demonstration must be understood in practical rather than theoretical terms. A practical demonstration of x works by bringing x into existence, and what the demonstration of freedom brings into existence is a moral will, a will regulated by the moral law and capable of acting in accordance with it. Since to act morally is to act freely, bringing a moral will into existence actualizes our capacity for freedom and demonstrates that we possess it. To confirm the viability of such a demonstration, Kant must establish that agents can regulate their wills by practical principles, and that practical judgments are efficacious of themselves (i.e., that non-Humean motivational internalism is true). Kant, I argue, is successful on both counts.



Pope calls for moratorium on the death penalty

Many news outlets and social media posts are getting this wrong. While the Pope has called for abolition in the past, his most recent statement was urging Catholic leaders to place a moratorium on execution to mark the Holy Year of Mercy. (The Holy year of Mercy was also the reason given for Mount St. Mary’s Pres. Newman to reinstate the professors he fired in a reprehensible act of dictatorial caprice.)

CNN gets it right.

It’s unfortunate that the Pope refers to the absolute right to life, which is a fairly incredible principle, unless you are a radical pacifist or a certain kind of Buddhist (both very respectable positions in my view.) An absolute right to life would render many acts of self-defense (at the individual or national levels) morally impermissible.

More innocents freed in 2015 than any other year

“At least 149 defendants were cleared last year, 10 more than in 2014, according to a review by the National Registry of Exonerations, a project of the University of Michigan’s law school that tracks such cases and also aims to reform the criminal justice system. The inmates had spent more than 14 years behind bars on average. Some served more than three decades in prison. The annual tally of false convictions has more than doubled since 2011, the registry said. On average, nearly three convictions were overturned every week last year. All told, the project has recorded 1,733 exonerations since 1989.”

via NYT

Cruz’s dime store death penalty memos

“In interviews with nearly two dozen of Mr. Cruz’s former colleagues on the court, many of the clerks working in the chambers of liberal justices, but also several from conservative chambers, depicted Mr. Cruz as ‘obsessed’ with capital punishment. Some thought his recounting of the crimes — ‘dime store novel’ was how one described his style — seemed more appropriate for a prosecutor persuading a jury than for a law clerk addressing the country’s nine foremost judges.”

via NYT

Race, gender, and arbitrariness in Florida capital sentencing

Some of the findings of a recent UNC study:

72% of all executions carried out in Florida between 1976 and 2014 were for crimes involving White victims despite the fact that 56% of all homicide victims are White.

Only 26% of all homicide victims are female, but 43% of all executions carried out in Florida were for homicides involving female victims.

Homicides involving White female victims are 6.5 times more likely to result in an execution than homicides in involving Black male victims.

No White person has been executed in Florida for a homicide involving a Black victim. In contrast, 71% of the executions carried out against Black inmates were for homicides involving White victims. In cases where Black inmates were executed, 56% of all of the victims were White.

pdf here

Death row interview with Richard Glossip

A snippet from Canon’s interview with Richard Glossip, who is under a stay of execution in Oklahoma:

Oklahoma officials discovered hours before Glossip’s scheduled execution that they had obtained the incorrect lethal injection drugs. Glossip is now one of the few to experience what leads up to execution—and lived to tell about it.

“It is real torture,” Glossip says over the phone from death row. He remains surprisingly upbeat throughout the conversation. “I think it is done to make you say, ‘Man, get me in that room and get this over with. Because it is hell. It really is.” For those 50-days, he says it was difficult to sleep without a reprieve from the constant harsh lighting. He hardly ate the food he describes as inedible and often forgot basic necessities like water. He struggled to cope under the constant gaze of the guard who was tasked with documenting his every move. “It really messes with your head,” Glossip shares. “I still look over my shoulder to see if someone is watching me.” Glossip explains that at times he would try to sit completely still on his bunk just so he could avoid witnessing the guard logging his last days alive. As time went by, teams of guards began rehearsing for Glossip’s execution as he watched from his cell.

via upvoted

Georgia’s peremptory challenges might be too much even for the Supreme Court

If striking *all* black jurors from a capital case is not a Batson violation, I don’t know what is. The only problem of course, is that SCOTUS’ bar is so low, all a prosecutor has to do is offer some putatively non-race-based reason for striking a juror, no matter how irrelevant or inane (i.e., hairstyle, clothing), to avoid violating Batson. It will be interesting to see how the Court rules.

via Atlanta Journal Constitution

Evangelical support for capital punishment waning

“The National Association of Evangelicals recently issued a new resolution on capital punishment recognizing Christians who work to abolish the death penalty.The new statement is not a call to abolish the death penalty altogether but it flags both social and theological concerns and affirms the growing movement of evangelicals who are against the death penalty.This may not sound like breaking news, especially after Pope Francis’s charismatic call to Congress to abolish the death penalty last month. But here’s why the NAE’s announcement is a big deal. In addition to being distinguished by a personal relationship with Jesus and a high view of Scripture, evangelicals have provided an unwavering political base and a solid theological backbone for the death penalty in America — until now.”

via Huffpo

Competent defense counsel reduces death sentences in Virginia

“Virginia has sentenced just 20 people to death in the past decade. This is a steep drop from the 1990s, when five to 10 people each year were sentenced to death. No one has been sentenced to death in Virginia since 2011. No governor imposed a death penalty moratorium; there was no hold-up with lethal injection drugs; and there has been no change in Virginia death penalty law. Why have there been no death sentences in four years—in Virginia?”