Friday, May 07, 2004

The Jewish Press's Brenner/Plaut debate on the death penalty ends with a second exchange. Jason Maoz, the editor, has informed me that this will be the final round. Plaut has put the letters on his blog as well, calling me a leftist, which I guess places me somewhere to the left of Attila the Hun. Members of the Joe McCarthy club and the J. Edgar Hoover Society (where men in pink dresses denounce pinkos), take notice. Plaut has a thick skin, so I'm sure he'll take the humor in stride.

Joshua makes a good point in the comments to letter one, pointing out that a defendant is more likely to be sentenced to death for murdering a white person than for murdering a Black or Hispanic person, and that this is the primary racial disparity in the death penalty's administration. I agree, though I maintain that the disparity I pointed out exists.

Irina suggests that we need more accurate forms of juror screening, a point with which I concur given that the current system makes it easy for juror to lie, though Irina's system of questionnaires is potentially too time consuming. Do you concur? Leave a comment.

Here's the letter. You can find Plaut's response here.

Brenner Vs. Plaut: One More Round On Capital Punishment

Steven Plaut`s response to my argument
against capital punishment (Letters, April 30) can
be boiled down to two main points. The first is that
the views of legal scholars on the death penalty,
including those who have performed empirical
studies, are irrelevant because, according to him,
legal scholars are incapable of empirical analysis.
The second is that I am simply unhappy with the
decisions made by sentencing judges.

There are at least three major problems with
Mr. Plaut`s response. The first is that the school of
economic analysis of the death penalty he cites,
fathered by economist Isaac Ehrlich in 1975, has
not held up over time and has been widely
criticized for faulty statistical analysis. (See sorensen.html)
No one appears to question the viability of
Ehrlich`s methods, but as the Sorensen article
makes clear, Ehrlich`s conclusions have not held up
and are not, at any rate, widely accepted. Mr.
Plaut`s claim that the evidence is overwhelming
thus remains unproven.

Deterrence is difficult to analyze because so
many other factors have to be isolated. Crime is
cyclical; the homicide rate rises and falls for many
reasons. Indeed, the fact that there is no death
penalty in Europe, where the homicide rate is a
small fraction of the U.S. homicide rate, strongly
supports the theory that the death penalty makes
little if any difference. And as I pointed out in my
last letter, most legal scholars believe that the
deterrence argument is unproven, which is why
death penalty advocates have turned to moral

Whether the death penalty is or is not a
deterrent is not the only question a death penalty
advocate must answer. The real question is not
how many lives the death penalty saves, but how
many more lives it saves than life imprisonment
and whether there are other ways of reducing
homicides without resorting to the death penalty.
Plaut must additionally prove that it is a better
deterrent than the alternatives, such as life im-
prisonment. And on top of that, given the great
cost of trying death penalty cases (and that cost
will be high whether there are extensive appeals or
not), he must prove that the cost of bringing these
cases does not wipe out any deterrent effect the
death penalty might have by diverting resources
that might be better used elsewhere. These
questions are all apropos because the death
penalty is irreversible and has a tainted past here
in the U.S., which is why we must examine it with
such close scrutiny.

Deterrence proponents argue that not
executing inmates is tantamount to condemning
future victims to death. This is misleading and, to
my mind, immoral. We do not punish criminals to
prevent a hypothetical future crime. We punish
criminals because they are guilty. Taken to its
logical conclusion, deterrence theory suggests that
we ought to punish innocent people if it can be
proven that such punishment deters later crimes
and saves more lives. It`s the old torture-a-child
question: Would you torture an innocent child to
save the world? Deterrence absolutists would
answer affirmatively. Would the wise rebbeim of
the Talmud? I think the answer is no.

Plaut himself shows a brazen willingness to
punish or kill innocents if it will deter criminals, as
he makes clear by arguing that families of suicide
bombers should be jailed or executed if it will help
stop suicide bombings. Is the imagination of death
penalty advocates so limited that they assume that
the eight or so murders purportedly deterred by a
state homicide (as the death penalty is officially
called on a death certificate) cannot be avoided in
any other way? How about better police work or
reducing poverty or a better system of public
education? All of these correlate with reduced
homicide rates. Yet I suspect Mr. Plaut is not about
to call for them before and after he flips the switch.

Mr. Plaut argues that the fact that people on
death row have been exonerated proves the
American system works and that my argument is
based solely on my personal opinion of judicial
rulings. Neither argument holds water. Mr. Plaut,
like many of his allies in the law and economics
movement, has criticized the long appeals process
that is often a part of American application of the
death penalty. He cannot now argue in favor of it
as proof that the American system works. And he
again refuses to draw the rational and logical
conclusion, which is that if DNA evidence (evidence
which has come to light largely through the work of
non-governmental organizations like Barry
Scheck`s Innocence Project, and not the judicial
system) has resulted in the exoneration of so many
defendants, there are doubtless many others
innocents who were killed in pre-DNA era.

Ethel Rosenberg`s case is an example of the
due process violations which befall those
disadvantaged in society. I could just as well have
used Ruben Carter, the boxer who was exonerated
after being on death row for triple homicide. (Mr.
Plaut ignored my other example of Sacco and
Vanzetti, which is applicable both as an example of
killing the innocent and a conviction based on
political association and national origin.) The
generally accepted view is that Ethel Rosenberg
was at most an unwitting accomplice, certainly not
deserving of the death penalty. And anyone who
knows anything about the case knows it was a
travesty, presided over by a cowardly judge who
was more concerned with proving his patriotism
than in conducting a fair trial and prosecutors who
broke rule after rule. The Rosenbergs` trial was
more about the Rosenbergs` Judaism and
affiliation with the Communist Party than about
whether they had committed any crime. That
pernicious attitudes toward blacks and Hispanics
influence some verdicts today is undeniable. All of
this is to bring out a simple point: even the best
justice system is human and fallible. In every
instance besides the death penalty, these mistakes
can be remedied. With the death penalty, however,
there is no going back.

One final, but very important point: Plaut`s
reference to Falluja is a very dangerous one. The
death penalty is a criminal justice concept, not a
military concept. I cannot stress enough the
importance of keeping war and criminal justice
separate. It is important for our sanity and
extraordinarily important for Israel`s hasbara. The
killings of Yassin, Rantisi, and other terrorists are
legally and morally defensible only on grounds that
they were combatants in war, and indeed, I and
much more learned people such as Alan
Dershowitz have gone to considerable lengths in
other fora to defend them on that basis. In war,
many things, including the unintentional killing of
civilians, are permitted that we would not
countenance as part of a just criminal system.

Michael Brenner
New York, NY


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