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Friday, September 30, 2005

Compensation never truly compensates, but it might help at least a bit

In my recent paper explaining what I take to be the retributivist case against the death penalty, I argue that one of the reasons the state should forbear from executions -- as opposed to other punishments such as prison -- is that when the guillotine drops, the opportunity for the state to express its contrition to the erroneously executed is lost.  By contrast, when a state erroneously imprisons someone, it can at least make some amends, even if it cannot return the lost time spent in prison.  This story in the Arizona Daily Star illustrates that principle, but only barely, since the authorities who settled the case have refused to admit any wrongdoing.  (Hat tip to Jack at CrimProf Blog.)

It's a pity because an apology to a man who mistakenly spent more than a decade on death row is well warranted, not to mention good politics.  There should be no shame in admitting that we try to do the best job we can in sorting the guilty from the innocent and sometimes we make mistakes, for which we are sorry.  Rather, the shame is in not doing the best job we can within reasonable resource constraints, and failing to own up at least for that.

The city of Phoenix has agreed to pay $3 million to settle a lawsuit filed by a man who was twice wrongfully convicted of murder and sentenced to death, city officials said.   It's the second settlement Ray Krone, 48, has received this year from the government. In April, Maricopa County agreed to pay Krone $1.4 million in compensation. ...

In addition to mental anguish, Krone said he sued Arizona agencies for the physical pain and suffering he endured. Krone said he was stabbed, his arm was broken and he contracted hepatitis C while in Arizona prisons. Neither the city nor the county admitted wrongdoing by settling the lawsuit, lawyers said. Krone won't see all the $4.4 million from the lawsuit. He said some of the money will go to his parents, who spent more than $300,000 and mortgaged their home to pay for his defense. Krone said he also owes about $500,000 in attorney's fees.

Posted by Administrators on September 30, 2005 at 12:46 AM in Criminal Law, Dan Markel | Permalink


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What if there is absolutely no doubt that the man committed the crime? For example, DNA evidence, collected from ample dozes of a perp’s blood and sperm found on and inside a victim’s body? Lots of witnesses? Plus lots of other physical evidence? As the DNA technology becomes more sophisticated, we'll see more and more of such clear-cut proofs of guilt.

What's a convenient excuse in those cases?

Posted by: Kate Litvak | Sep 30, 2005 10:26:11 AM


Yes, focusing on the number of cases of wrongful conviction are all just at root about finding "a convenient excuse" to oppose the death penalty. Because that's what liberals do.

Fortunately, though, we don't have to worry about finding another excuse for a while. It turns out that wrongful convictions are frighteningly convenient.

Posted by: Kaimi | Sep 30, 2005 12:16:16 PM

I argue that one of the reasons the state should forbear from executions -- as opposed to other punishments such as prison -- is that when the guillotine drops, the opportunity for the state to express its contrition to the erroneously executed is lost.

Do you really think the state wants to "to express its contrition"? Certain government officials might be forced through a lawsuit to compensate the wrongfully convicted, but don't project your sense of shame, decency, and humilty onto the prosecutors and other responsibile state officials. They simply don't care.

I think something like 100 folks have been freed from death row. I haven't seen a single apology. Most of the time, the prosecutors look for ways to re-prosecute those who have been freed. When the exonerated applies for money through a compensation fund, their efforts are resisted.

So, while I appreicate the sentiment of your paper, my first and concluding response is:
State: Dan, we read your paper.
Dan: Great! What'd you think?
State: Don't do us any favors!

Posted by: Mike | Sep 30, 2005 12:32:31 PM


no, wrongful convictions are increasingly becoming a *bad* excuse because new technologies make it easier to distinguish "wrongful" from "non-wrongful" convictions. So, if you are not willing to say that perps convicted under the weight of uncontroverted DNA evidence should be executed, you better come up with another excuse against the death penalty.

As I said before, I am perfectly happy with an honeset claim of moral revulsion against the death penalty. I am only annoyed with hypocritical attempts to cover purely normative positions with instrumentalist rhetoric. No bullshit please. It’s all very transparent.

Posted by: Kate Litvak | Sep 30, 2005 12:36:31 PM

no, wrongful convictions are increasingly becoming a *bad* excuse because new technologies make it easier to distinguish "wrongful" from "non-wrongful" convictions.

I hate to interject myself into this argument, but I disagree with the above point. DNA has taught us how unreliable, for example, eyewitness testimony is. Many people were wrongfully convicted based on mistaken identification, and then freed when DNA was tested. So even "lots of witnesses" won't satisfy this skeptic, since science has shown how incompetent most of us are in a) recognizing people and b) remembering what we've seen or heard. (BTW, I support the death penaly in cases where the perps guilt is established beyond any doubt, as in the Michael Ross' case.)

Ms. Litvak, I'm curious, in light of DNA evidence and exonerations, would you agree to a system where no one could be executed unless DNA tied the defendant to the victim or crime scene?

Posted by: Mike | Sep 30, 2005 12:58:25 PM

Mike: DNA evidence is an excellent aid, but it should *not* be a necessary condition to execution. Extreme example to illustrate the point: suppose a deranged fanatic breaks into a classroom full of second-graders, shoots a teacher, keeps the kids at a gun point, and streams that he will kill each one of them if he is not given a plane and $10,000,000. The school is surrounded by the police who try to talk him out of it, but he proceeds to shoot and kill the kids anyway. The squad then breaks into the room and grabs him alive. He doesn't leave his DNA on kids’ bodies because he used the gun and didn’t actually touch them.

Should the absence of DNA prevent him from being executed (assuming he is found mentally competent)? I sure hope not.

Posted by: Kate Litvak | Sep 30, 2005 1:27:34 PM


Are you suggesting (A) that the current state of trials, evidence, and so forth, is sufficiently advanced that it is no longer appropriate to raise instrumentalist critiques of the death penalty?

Or are you merely suggesting that (B) at some future date, some instrumentalist critiques may become inappropriate due to advances in technology?

Of course (B) is correct. It is possible to envision a future society where most crimes can be linked by DNA and so forth. In such a society, certain instrumentalist critiques will no longer be valid. Particularly, the "you got the wrong guy" critique. (On the other hand, other instrumentalist critiques may remain entirely valid, and any moral objections will remain.)

In the meanwhile, I'm trying to figure out your beef with Dan's original post.

(A) is responsive, though probably wrong --
Dan: The number of wrongful convictions raises concerns about using
the death penalty.
Kate (A): No it doesn't, our technology is wonderful and there are no problems.

If this is your argument, I leave you in the capable hands of our criminal law cohort here, who will proceed to destroy you.

(B) is just non-responsive --
Dan: The number of wrongful convictions raises concerns about using
the death penalty.
Kate: Yes, but technology may adance enough that some day those concerns are no longer present.

Um, okay. So what? We'll cross that bridge when we get there. In the mean time, there _are_ wrongful convictions now, and they weigh against use of the death penalty. And until we arrive in Shangri-La, where DNA proves everything handily, there are going to be wrongful convictions.

So what is your argument, Kate? And how exactly is it responsive to Dan's original post?

Posted by: Kaimi | Sep 30, 2005 2:51:23 PM

It is dangerous work to try to put words in Ms. Litvak's mouth, but allow me to suggest that at the very least she can point out, that for some relatively definable subset C of death penalty cases, the instrumentalist critique simply fails, so an instrumentalist opposition to every death sentence falls flat.

Posted by: Will Baude | Sep 30, 2005 3:11:12 PM

Kaimi: *consistency* is my key in distinguishing principled use of instrumentalism from its hypocritical use as a cover-up for the real emotions (real emotions being politically unpopular, hence the cover-up attempts).

So, if the risk of wrongful prosecution is what really drives your opposition to death penalty, you should have no problem with executing perps who are conclusively proven guilty by, say, the use of DNA evidence found inside victims’ bodies. Or who are caught by a police squad while killing a hostage in the middle of prolonged negotiations. Just pick a case where there is absolutely zero doubt. No doubt of any sort. And ask if those perps should be executed.

If you are willing to execute those, then, your "no-wrongful-prosecution" instrumentalism is true and consistent. But it, of course, won’t justify a blanket prohibition of the death penalty that many liberals support. And it will become an increasingly poor excuse as the technology improves.

On the other hand, if you are not willing to execute even those perps, quit pretending. Just say you don't want to execute no matter what. I'd respect that much more than hypocritical ad hoc additions of politically-acceptable instrumentalist excuses.

Posted by: Kate Litvak | Sep 30, 2005 3:58:28 PM

Ms. Litvak, yes, under those circumstances, I would be willing to rely on human perception instead of DNA. Such instances are sufficiently rare (aside from the NY subway shooter, I can't think of one) that my default - but now, in light of your counter-factual, not absolute - rule is that where DNA is lacking, I can't support a death verdict. Or, as I say to friends: "If there's a kid, and there's an adult's DNA inside him, I'm fine with the death penalty, even if the kid survives the assault."

Posted by: Mike | Sep 30, 2005 4:49:35 PM

Sorry I missed the conversation here the last few days while I was without email/web access. It's unclear to me whether the rhetoric above is a response to something I actually wrote, something Kaimi actually wrote, or someone else. I'll presume good faith and assume it's the last one. In any event, let me just note that one can distinguish between conceptual and contingent arguments against the death penalty, and both have their purposes (politically and philosophically). For the people who reject conceptual arguments (having to do with dignity of the offender or of the state, or other arguments), they might be persuaded that the death penalty can't be administered well in light of contingent concerns about executing innocent people on occasion. The fact that technology is improving with respect to DNA might reduce one's fears about wrongful executions, but with respect to Kate, it shouldn't eliminate such fears. For one thing, as the experience in the Houston labs has shown, DNA evidence can be mishandled (both through incompetence or malfeasance). If that happens, then the availability of the misbegotten DNA as evidence only makes juries believe "we have the right one" faster. This is particularly problematic in states that don't provide parity in resources to defense counsel so that they can put up a challenge to the DNA evidence. Some people, surprise, may have some trouble with that state of affairs, and decide, on balance, we shouldn't be playing with the machinery of death, even with DNA evidence. (While this might be a sufficient justification for forbearing from the death penalty as retributive punishment, it wouldn't necessarily address the deterrence views if it turns out that executions are part of a life-life tradeoff scenario, as Sunstein-Vermeule argue).

Posted by: Dan Markel | Oct 3, 2005 12:49:30 AM


I don't know about anyone else on this thread, but I'm not "pretending" anything. My impression is that Dan's not "pretending" either.

You, however, seem eager to insinuate that Dan's arguments, and my comments, can only be explained as "excuses" and "pretending." You characterize them as "hypocritical attempts to cover purely normative positions with instrumentalist rhetoric. No bullshit please."

For such an empiricist, Ms. Litvak, you're awfully willing to spout off about a factual matter -- the presence or absence of a moral objection to the death penalty held by me -- about which you know absolute jack shit.

I'm no expert on Dan's positions, but I'm absolutely certain that I have never discussed with you, or posted online, regarding whether I have, or do not have, moral objections to the death penalty.

I'll borrow your tactic from Conglomerate and offer you a $100 to $10 bet, Kate: You find a written statement by me -- on a blog, in my legal writing, in a newspaper, wherever -- indicating a moral (as opposed to instrumental) opposition to the death penalty, and I'll pay you $100. If not, you pay me $10. Care to take me up on the bet? (Hint: Don't expect to go shopping with your winnings).

Alternatively, you might try suppressing your urge to characterize my arguments as hypocrisy based on my hiding of some real motive that only you know about.

Posted by: Kaimi | Oct 3, 2005 2:14:35 AM

Kaimi, you hypocrite! You're using REASON and EVIDENCE and ARGUMENT to conceal your true nefariously moral motives! Will you liberals stop at nothing? ;-)

Posted by: Paul Gowder | Oct 3, 2005 10:42:31 AM

Kaimi: have you gone mad? Where did I say I knew your personal positions on this matter? Did you notice that I kept using hypothetical "if" instead of factual claims? For example: “if you are not willing to say that perps convicted under the weight of uncontroverted DNA evidence should be executed, you better come up with another excuse against the death penalty.”

Or even more obviously, in another entry of mine: "If you are willing to execute those, then, your 'no-wrongful-prosecution' instrumentalism is true and consistent... On the other hand, if you are not willing to execute even those perps... just say you don't want to execute no matter what."

I have no idea on which side of the “if” you land. And I don’t care – because your personal views on this matter are completely irrelevant for the argument I was making. My point was that the avoid-wrongful-execution instrumentalism is irreconcilable with the unwillingness to execute a perp for whom there is absolutely zero doubt of guilt. This argument is *not* based on your personal position, or on any empirical observation for that matter. So, if you disagree with this argument, the right response is "here is a conceptual problem with your argument (e.g., internal inconsistency)", rather than "how do you know what I personally believe?"

And since I never made any empirical claims about your (or anyone else's) stance on this subject, I also never claimed that any particular person is either “consistent” or "pretending." Once again: *if* you aren't willing to execute anyone for any reason no matter how clearly the guilt is proven, *then* quit claiming that it’s about the risk of wrongful execution. And *if* you are willing to execute those whose guilt is at zero doubt, *then* you can't advocate blanket prohibitions on all executions.

If, Kaimi, if. If!

And finally a linguistic point that I never thought I would have to make to a lawyer: the word "you" in the English language means not only the concrete person with whom we talk, but *any* person in general. As in "you can't have your cake and eat it too." So, when I say, “if you are not willing to do X,” it doesn’t mean “I know for sure that you, Kaimi, are unwilling to do X.” Instead, it means “if a person is unwilling to do X.” Notice “if”. And notice generic “you.” No matter how personally you tend to take things, the word "you" is not always directed at you personally.

Please read what I actually wrote before you get so worked up.

Posted by: Kate Litvak | Oct 3, 2005 12:45:54 PM

To make it very clear: I used the word "you" to refer to a generic “person,” not to refer to Kaimi and/or Dan in particular. I used the word “hypocritical” as a reference to a politically-savvy (and hypocritical) use of instrumentalism to cover up one’s unpopular private views in general, rather than in reference to any particular view of Kaimi or Dan. I never expressed any opinions on what Kaimi’s or Dan’s private views are, and on whether I believe those views to be hypocritical.

I should notice that the left and the right are equally guilty of using instrumentalism hypocritically. One of many right-wing’s versions is, e.g., outlawing the use of the abortion pill ostensibly to protect women’s health. I should remember that the blog medium makes it hard to transmit nuances of the intended message.

Posted by: Kate Litvak | Oct 3, 2005 1:38:00 PM


So, let me get this straight. You (Kate, not the generic you) saw Dan's post, and you decided to use the comments section of it as a personal soapbox to inveigh against unnamed people who aren't here, and who you believe are hypocritical instrumentalists. You decided to make this argument though the widespread use of "generic you" construction. And you chose to intermingle your generic-you arguments with personalized responses to me.

Well, if you say so, Kate. (If!).

You've certainly done the best you can to backtrack and hide behind generic-you. And there is just enough wiggle room that your argument looks almost plausible. Almost.

It looks almost plausible because in certain of your comments, you certainly are engaging with a generic you. But others seem much less clear.

First, the most natural reading of comment number 1 is as an implication that Dan's original post is seeking "convenient excuse[s]" It's the very first comment on the thread. You respond to Dan's post by suggesting a counterfactual and demanding "what's a convenient excuse then?"

Now perhaps you just decided to tilt at windmills in the very first comment to Dan's post, and those windmills just happened to be (hypothetical) hycritical instrumentalist death penalty opponents, and instrumentalist opposition to the death penalty just happened to be the topic of Dan's original post -- but all that aside, you were in no way meaning to actually imply that Dan himself was looking for "convenient excuses."

Now what's that they say about Occam's razor?

On to your second comment. This one is addressed to me personally. Whatever one says about generics and counterfactuals, by addressing it to me, you create a pretty strong presumption that unqualified second-person statements contained in it are, well, addressed to me.

It does contain a qualified "if" second-person sentence, which I'll leave alone for now. But it also ends with an unqualified, second person imperative: "No bullshit please. It's all very transparent." In a comment that is directed to me by name, the most reasonable reading of this unqualified second-person imperative has to be "Kaimi, stop bullshitting." That's an implication that my own instrumentalist arguments are based on bullshit.

Again, perhaps you simply chose to direct your statement to the four winds. Perhaps you simply happened to do so in a comment addressed to me by name. Perhaps you meant no implication that my own statements were bullshit. Again, Kate, run that by Occam's razor and tell me what you find.


I appreciate that there are arguments to be made against hypocritical use of instrumentalist arguments against the death penalty. I very much dislike hypocritical instrumentalism myself. I have no substantive complaints with your critique against hypocritical instrumentalists -- and I think we broadly agree on the merits in this area. However, I object to your statements which, intentionally or otherwise, implied that Dan or I were hypocritical instrumentalists ourselves.

Posted by: Kaimi | Oct 3, 2005 1:52:57 PM


It appears that our comment crossed in the mail. When I began composing my own last comment, your "clarification" comment was not posted. As it is, your clarification is helpful. I'll respect your clarification.

My opposition to your comments was based on a belief that they implied hypocrisy by me or Dan. I'm glad that you don't believe that Dan or myself are being hypocritical on the issue. As I said earlier, on the merits (that is, opposition to the use of hypocritical instrumentalism by whichever parties may use that tactic), I agree with you completely.

Posted by: Kaimi | Oct 3, 2005 1:57:33 PM

I can't fucking believe I actually read this entire shit thinking I was going to learn something other than: "IF" you are against the death penalty for instrumentalist reasons, then using any argument against the dp is just a cover.

Thank you for wasting my time. I'll bill you later. Get a life people.

Posted by: Lord Les | Oct 24, 2007 2:39:43 AM

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