Comments on: Send Lawyers, Guns and Philosophers

By: neddy

neddy — Fri, 07 May 2004 20:13:38 +0000

I initially read “no doubt” as requiring a confession and acquiescence on the part of the accused. That would raise some issues of state-sponsored suicide, however. I wonder how really pro-death-penalty people would feel if it could only be applied with consent. Personally, I oppose the death penalty because I disagree that it’s a more severe penalty than life in prison.

By: Joshua W. Burton

Joshua W. Burton — Thu, 06 May 2004 17:39:02 +0000

I’ve never agreed with this argument. Why should we be happy with less certainty before we send someone away for life to rot in a cage with sexually frustrated thugs? This brings me (an Illinois resident) back to the great change of heart on the death penalty I had during Governor Ryan’s moratorium a couple of years ago. For many years I opposed the death penalty on hard fiscal grounds: it seemed a frivolous waste of taxpayer money to spend $6M and up to execute a murderer, if you could lock him up for life for about $1.2M on average. Since most of the cost of execution is in constitutionally protected habeas corpus proceedings after the appeals process, there is no obvious way to cut costs, either. But this analysis hangs on the unspoken assumption that the system is working. And in Illinois, it turned out that we had executed 12 people since the 1970s, while putting at least 13 capital-I innocent people on death row. (The total went up to 17 after Ryan’s review.) In other words, we have a baker’s dozen wrongly accused citizens walking free today who would have been locked up in a cage for the remainder of their natural lives if they had not been sentenced to death. Suddenly, the extravagant legal costs borne by the state in capital cases no longer looked like a luxury at all. So now, I favor capital punishment with a continuing moratorium. Anyone who is convicted of capital murder (and who elected to fight it, rather than plead out for life without parole) deserves the level of scrutiny that a democracy will demonstrably not fund except when a human life is at stake. Note that the frank glimpse into how the system really worked between 1970 and 1990 was a one-time lifting of the veil. Never again in our lifetimes will we have defendants who were convicted on false evidence planted with no thought of DNA testing, but later reviewed through such testing. But there is no reason to believe that frame-ups will cease, now that they are again hard to uncover.

By: LizardBreath

LizardBreath — Thu, 06 May 2004 17:20:35 +0000

As a matter of legal practice (or rather, of how I understand what a juror is supposed to do) I believe you’re right, that even where uncertainty could be justified, it is still possible properly to find a defendant guilty beyond a reasonable doubt. The juror is supposed to inspect her mental state, and discover whether there is in fact a doubt residing within. If there is no such doubt, vote to convict. If there is a doubt, analyze it to see if it is reasonable: if so, acquit, if not convict. During deliberations, Juror A, who initially voted to acquit, might say in an attempt to convince Juror B, who initially voted to convict: “I have a doubt as to defendant’s guilt, and that doubt is for reason X”. Juror B could properly respond: “I can understand reason X, and I accept that your doubt is therefore reasonable. Nonetheless, X does not create a doubt in my mind, and I still, therefore, have no doubt as to defendant’s guilt, whether reasonable or unreasonable.” Doubt, in this context, is a psychological event rather than a necessary consequence of an argument.

By: Jonathan Ichikawa

Jonathan Ichikawa — Thu, 06 May 2004 16:35:20 +0000

Isn’t there an important difference between (1) a doubt and (2) a possible doubt? Moore and Reid and some other people argued pretty plausibly that sane people don’t actually doubt, based on these skeptical scenarios (Descartes even admitted this). So there might still be no doubt, even if we can’t prove a justification for certainty.

By: derrida derider

derrida derider — Thu, 06 May 2004 04:59:19 +0000

But it does make sense that death-penalty convictions require a higher standard. – andrew boucher I’ve never agreed with this argument. Why should we be happy with less certainty before we send someone away for life to rot in a cage with sexually frustrated thugs? It seems to me that in looking for more certainty for one penalty here we’re really acknowledging that our standards are too low for others.

By: T. Gracchus

T. Gracchus — Thu, 06 May 2004 01:25:57 +0000

It is doubtful that any philosopher would qualify ass an expert along the lines suggested because it they fail Rule 702. None of the categories plausibly aid the finder of fact in reaching an understanding of a factual issue.

By: Matt Weiner

Matt Weiner — Thu, 06 May 2004 01:02:44 +0000

I think a fourth employment for philosophers is to argue that some apparent doubts aren’t really doubts at all. On a cod-Rortyan view, conceivable doubts aren’t enough; a doubt doesn’t count as a doubt until some actual interlocutor brings it up. Applied, that might justify the standard that evidence of innocence that has somehow been kept out of court isn’t evidence at all; which sometimes seems to be the standard at work in death-penalty jurisprudence….

By: IB Bill

IB Bill — Wed, 05 May 2004 23:32:05 +0000

As Rea said, the new standard goes to 11. It’s louder. That is, verbal inflation has purportedly damaged the reasonable doubt standard, and thus a newly worded standard must be created to articulate the old standard. That is, it goes to 11. Lizardbreath actually rained on the parade a little bit, but I’m glad he/she explained. Reasonable doubt is a doubt you can back up with argument; no doubt means you must be beyond even an inkling. But as Brian said, philosophically, it’s a mess.

By: Decnavda

Decnavda — Wed, 05 May 2004 23:17:05 +0000

Brian – This post was a humorous and enjoyable read. BUt interms of concisely making a well reasoned point, your response to Andrew was a thousand times better than the origianl post.

By: jdw

jdw — Wed, 05 May 2004 22:17:57 +0000

Nope it couldn’t be less stringent. The reasonable doubt standard is a Constitutional one. States can be more but not less strict than the Constitution allows in this case. But we’re only talking about sentencing in a death penalty case, here—anyone sentenced to death is already guilty beyond a reasonable doubt. My point was that it seemed like the standard for putting somebody to death was looser than the standard for convicting them of the crime. Which doesn’t mean anybody would be losing rights, just that the provision is pointless.

By: Sebastian Holsclaw

Sebastian Holsclaw — Wed, 05 May 2004 22:02:29 +0000

“Is it possible that “no doubt about the defendant’s guilt” could actually be less stringent than “guilty beyond a reasonable doubt”? It seems like “a reasonable doubt” makes reference to something beyond a juror’s personal opinion in a way that “no doubt” doesn’t.” Nope it couldn’t be less stringent. The reasonable doubt standard is a Constitutional one. States can be more but not less strict than the Constitution allows in this case. If properly applied I think the reasonable doubt standard is about as high as you can (well reasonably) have. If improperly applied, well the no doubt standard could be improperly applied too.

By: LizardBreath

LizardBreath — Wed, 05 May 2004 21:31:45 +0000

Right, and the post was funny. I’m just humorlessly compulsive about explaining burdens of proof, because in my professional experience they confuse people so much and so unnecessarily.

By: yami

yami — Wed, 05 May 2004 21:19:27 +0000

Hey, let’s not let some crazy “substantive issue” prevent the overmilking of a joke. What happens in a Daubert challenge of an epistemological expert witness? I haven’t the necessary expertise to produce a script of the likely Supreme Court hearing (complete with gratuitously satirical yet devastatingly witty remarks for Scalia) but for law/philosophy types I’m sure it practically writes itself!

By: LizardBreath

LizardBreath — Wed, 05 May 2004 20:46:25 +0000

because the bar was already meant to be set as high as it can reasonably be. As I tried to make clear above, but apparently didn’t, the bar is not already meant to be set as high as it can reasonably be. If you listen to judges trying to communicate what ‘beyond a reasonable doubt’ means to a jury, they are very clear that it does not mean absolute certainty (in the subjective sense in which one can be ‘absoutely certain’ of anything). It means something more like ‘having no doubts that you could back up with an argument’. A juror can be plagued by vague doubts and insecurities about whether it’s possible that a defendant might be innocent, but if he can’t back those up with some reason, he’s supposed to convict. A “no doubt” standard describes a different psychological state in the juror’s mind, a state of absolute certainty of the defendant’s guilt. You might say that if the juror can’t articulate a reason for his doubts, he shouldn’t have any such doubts, and so the two standards should collapse into each other. As a matter of psychology, I think you’d be wrong: I think it is quite common to find a line of argument or proof somehow unconvincing without being able to show why. The proposed Massachusetts standard would allow a juror to acquit on the basis of such an inchoate, inarticulable doubt; the ‘beyond a reasonable doubt’ standard does not.

By: 16

16 — Wed, 05 May 2004 20:38:11 +0000

“If prosecutors have to rule out these unreasonable doubts before getting a capital conviction, I don’t like their chances.” If by, ‘I don’t like their chances’ you mean their chances are slim and none; then I like their chances just fine. But hey, I’m from Wisconsin, we believe in God, Alfie.