The Enfeebled Host

Here’s a sad item about central California — a lament, perhaps, or something approaching the final draft of an obituary — from Victor Davis Hanson.

86 Comments

  1. Hanson is a military historian reliving the nightmare-dÁ©nouement of the “Decline and Fall of the Roman Empire” in Steinbeck-Cali.

    He is obviously gathering data for a magnum opus to be written in the not too distant future.

    Posted June 22, 2011 at 7:56 am | Permalink
  2. the one eyed man says

    I’m rarely in the Central Valley, so I can’t comment on whether it is the lawless Hell hole which Hanson suggests, or the bucolic farmland it seems to be when you drive through it (to use a preposition to end a sentence with).

    When I moved to Manhattan in 1976 — the Son of Sam summer — much of New York City could fairly be described as lawless. I’ve never felt safe at night in New Orleans or the parts of Chicago around Cabrini Green or Midway Airport. So I’m not sure that Hanson’s anecdotal evidence of increasing and rampant crime, as well as his inferences (e.g., that somehow — surprise! — liberal government is to blame), would withstand scrutiny.

    It seems to me that part of the right wing Weltanschauung is the belief that things are going to Hell in a hand basket, and in the halcyon days of yore we were stronger, happier, and more prosperous. I guess mankind must have been happiest in prelapsarian times, when unwarranted government intrusion hadn’t even been thought of (another preposition!). What’s up with that? Do you have to believe that things are going down the tubes to be a rootin’ tootin’ conservative?

    Posted June 22, 2011 at 2:28 pm | Permalink
  3. Malcolm says

    Well, of course one has at least to imagine, given the law of unintended consequences, that things as they are, or as they were, were not so awful as to warrant radical, deliberate change.

    Perhaps the best summary of the conservative disposition I’ve ever read is by Michael Oakeshott (see my posts about his essay, here and here).

    Here’s a passage I excerpted in one of those posts:

    The idea of innovation … is improvement. Nevertheless, a man of [conservative] temperament will not himself be an ardent innovator. In the first place, he is not inclined to think that nothing is happening unless great changes are afoot and therefore he is not worried by the absence of innovation: the use and enjoyment of things as they are occupies most of his attention. Further, he is aware that not all innovation is, in fact, improvement; and he will think that to innovate without improving is either designed or inadvertent folly. Moreover, even when an innovation commends itself as a convincing improvement, he will look twice at its claims before accepting them. From his point of view, because every improvement involves change, the disruption entailed has always to be set against the benefit anticipated. But when he has satisfied himself about this, there will be other considerations to be taken into the account. Innovating is always an equivocal enterprise, in which gain and loss (even excluding the loss of familiarity) are so closely interwoven that it is exceedingly difficult to forecast the final up-shot: there is no such thing as an unqualified improvement. For innovating is an activity which generates not only the ‘improvement’ sought, but a new and complex situation of which this is only one of the components. The total change is always more extensive than the change designed; and the whole of what is entailed can neither be foreseen nor circumscribed. Thus, whenever there is innovation there is the certainty that the change will be greater than was intended, that there will be loss as well as gain and that the loss and the gain will not be equally distributed among the people affected; there is the chance that the benefits derived will be greater than those which were designed; and there is the risk that they will be off-set by changes for the worse.

    Posted June 22, 2011 at 2:36 pm | Permalink
  4. Malcolm says

    I’ll point out also that the decay of New York proceeded apace throughout various Democratic administrations up to and including that of the effete and feckless Dinkins, and it was not until a strong conservative mayor was elected that things began to improve.

    Certainly as far as Victor Hanson’s experience is concerned, life in the Central Valley, where his family has farmed for generations, was stronger, happier and more prosperous in the days of yore. And the increasing lawlessness of the region, due primarily to the increasing presence of rootless aliens who have no fear of the system (and that the system itself pays no attention to, except to provide costly services), arguably is due to liberal governance.

    Just because people in the past have thought that things are going to hell doesn’t mean they aren’t.

    Posted June 22, 2011 at 2:46 pm | Permalink
  5. Peter,

    I lived just north of The Bronx (in Westchester) during Son-of-Sam’s reign of terror. I don’t recall being very concerned about it. Anecdotal evidence like that is available for any part of the country and for many different time periods.

    I consider myself a conservative on economic issues and mostly liberal on many social issues that concern Americans today. And no, I do not look to past decades with the blurry vision you insinuate in your comments.

    Nevertheless, it seems clear to me that California (which I lived in briefly in the early 1980s) is going to hell in a hand-basket, compared to many other states that are not, or at least not on the express train-wreck.

    So, what’s up with that? Do you suppose I have some sort of conservative bias against the State that I still believe has the greatest potential to be a wonderful place to live? Or am I justified to be concerned about its future because its politics is characterized by Nancy Pelosi, who, as you well know, is bat-shit crazy?

    Posted June 22, 2011 at 2:51 pm | Permalink
  6. the one eyed man says

    I voted for Giuliani, despite an upbringing which taught me that voting Republican is a crime against nature. I also voted for Schwarzenegger. I think both of them did good jobs. Much better jobs than David Dinkins or Gray Davis did.

    As for California: first, its politics are not characterized by Nancy Pelosi (who, far from being bat shit crazy, is one of the finest public servants in America today. Maybe the finest, with the possible exceptions of Robert Gates, Barack Obama, and Harry Reid. Did I mention Bernie Sanders?) We’ve had plenty of Republican governors: Reagan, Dukemajian, Schwarzenegger, as well as legislatures which have had Republican majorities. We now have an improving fiscal situation — tax receipts are billions higher than expected, and where I live property values are going up — as well as a governor who won’t sign a budget with gimmicks. It is a wonderful place to live, as I remind myself every time I see water glisten off the Bay or get a Double Double at In-N-Out Burger.

    Whatever problems California has are due not from those who lead it, but from a poorly designed governmental structure, the promiscuous use of propositions, and gerrymandered districts which lead to a fractured and polarized legislature. The last of these problems has seemingly been solved by a recent proposition which required districting to be done by a blind panel. However, we have democracy run amok, as the electorate consistently votes for things it wants and votes against taxes to pay for them.

    However, my question is not from the day-to-day exigencies of politics, but from a 30,000 foot level. William F. Buckley famously launched National Review with the mission of standing “athwart history, yelling Stop, at a time when no one is inclined to do so, or to have much patience with those who so urge it.” So I get that part: liberals are more likely to be risk tolerant and conservatives are more likely to be risk averse.

    My question is whether this temperament extends to making conservatives glass-half-empty types. So much of conservative writing is suffused with a pervasive gloominess that would make Harold Camping look like an optimist. Is it that conservatives have looked at the world and found it going from upper left to lower right, or are they predisposed to look at things that way in the first place?

    Posted June 22, 2011 at 3:20 pm | Permalink
  7. the one eyed man says

    Also, while New York arguably decayed during the administrations of Beame and Koch, this putative decay probably started during the administration of the Republican Mayor John Lindsay.

    Posted June 22, 2011 at 3:31 pm | Permalink
  8. Malcolm says

    To really get the feel for this, Peter, I’d suggest you read John Derbyshire’s excellent curative for the optimistic, We Are Doomed.

    Certainly you are right that much of the blame for California’s accelerating slide into the abyss is due to putting the levers of government (and in particular, the controls of the giant steam-powered lemon-squeezer into which the groaning taxpayer is shackled) directly in the hands of the mob.

    But a great many of the factors that affect California’s dismal prospects for survival — suffocating government regulation, an unchecked tide of illegal immigrants, sharply rising diversity with attendant loss of social cohesion, &c. — are the result of policy preferences that are far more in favor on your side of the aisle than mine.

    With gritted teeth, I will pass over in silence your assertion that Nancy Pelosi “is one of the finest public servants in America today”. I know you just threw that in to get a rise out of me.

    Posted June 22, 2011 at 3:36 pm | Permalink
  9. Malcolm says

    But yes, there is a gloominess to conservative writing. It is due to the perception that much of the damage done to Western civilization generally, and to America in particular, has past the point of reversibility, even if we had the will to reverse it — which we clearly don’t, what with liberal orthodoxy still firmly in command of academia, the mainstream media, and the White House, and with the electorate (and therefore their elected representatives) still far more concerned with raiding the government vaults for goodies and giveaways than with safeguarding the nation’s future, or even its identity.

    Posted June 22, 2011 at 3:56 pm | Permalink
  10. As for me, Malcolm and Peter, I was actually optimistic (as is my wont) in commenting as I did above, thinking I might elicit a response that was less confrontational than these discussions normally are. But I am disappointed to hear Peter continue in his crusade-mode of “us good guys” versus “you bad guys”.

    If you are truly of the opinion that bat-shit crazy Pelosi “is one of the finest public servants in America today”, Peter, then you are either trying to get a rise out of Mal (or me), or you yourself are hopelessly deluded.

    But I really do mean this in a nice way. Deep down, I am confident you know I’m right.

    Posted June 22, 2011 at 4:10 pm | Permalink
  11. Malcolm says

    I wouldn’t say that Peter is in “crusade” mode here: I think he really is trying to understand the conservative mind — which is still utterly alien to him, full of strange thoughts, and erected upon an entirely foreign, and nearly ungraspable, system of axioms & postulates.

    I actually think that’s kind of admirable. It’s more than most liberals ever try to do.

    It’s much easier for us conservatives to understand liberals, because many, if not most, of us were liberals ourselves once — before the years gave us wisdom, reality shattered our hopeful illusions, and the scales fell from our eyes. (I certainly was.) But that’s kind of a one-way street: liberals who are former conservatives are exceedingly rare.

    A quote from the Koran: Verily in this is a Sign for those who give thought.

    Posted June 22, 2011 at 4:27 pm | Permalink
  12. Well, you obviously know him much better than I do, Mal. I will accept your “admirable” and raise you “wry, if somewhat warped, sense of humor”.

    Posted June 22, 2011 at 4:32 pm | Permalink
  13. As for your last paragraph, Mal, it is spot-on. I was a liberal back in the “halcyon” days, too.

    Posted June 22, 2011 at 4:39 pm | Permalink
  14. Malcolm says

    Sorry – added that after I originally posted the comment. Bad habit.

    Posted June 22, 2011 at 4:40 pm | Permalink
  15. The blog-meister’s privilege …

    Posted June 22, 2011 at 4:43 pm | Permalink
  16. Malcolm says

    Here’s a well-known liberal who took the red pill.

    Posted June 22, 2011 at 5:34 pm | Permalink
  17. Malcolm says

    Can’t seem to break that bad habit: just did it again.

    Posted June 22, 2011 at 5:41 pm | Permalink
  18. I recently read Mamet’s “The Wicked Son”. I know you are not Jewish, but I think you would appreciate his philosophical views.

    Posted June 22, 2011 at 5:44 pm | Permalink
  19. Malcolm says

    Right, I’m Celtic through and through (100% Scottish on my mother’s side back to the dawn of time, Scottish/Cornish/Welsh on my dad’s). But given that my wife’s Jewish, and that I’ve spent my whole adult life in the New York music business, at this point I’m kind of an honorary Jew.

    Posted June 22, 2011 at 5:54 pm | Permalink
  20. You mean there are no Scottish Juice whatsoever? :)

    Anyway, if you haven’t read “The Wicked Son”, I recommend it (which I would do even if you had read it).

    Posted June 22, 2011 at 5:57 pm | Permalink
  21. Malcolm says

    Well, I don’t want to get bogged down in any “True Scotsman” issues here…

    Posted June 22, 2011 at 6:01 pm | Permalink
  22. I guess it’s show and tell time, so …

    I am Ashkenazi (descended from the medieval Jewish communities along the Rhine in Germany), probably since before there was a Germany, if that has any meaning. But my wife, the lovely Trish, is Swedish/Irish, and as far as I know there are no Scandinavian or Irish Juice whatsoever, except for that Mayor of Dublin … Trish considers herself Jewish by injection. :)

    Posted June 22, 2011 at 6:08 pm | Permalink
  23. bob koepp says

    If there’s one thing that self-identifying conservatives ought to have, it’s a sense of the long-term. The large-scale trends of history are only dimly discernible, but I think they provide some reason for optimisim. We seem to have muddled our way through much more serious situations than presently confront us. Here, I take my cue from the evolutionary ecologist David Lack: “We who are among the ripples are sometimes buffeted by them, and so we forget that, from the deck of S.S. Olympus, the sea is very calm.”

    Posted June 22, 2011 at 7:00 pm | Permalink
  24. I like the view offered by David Lack. It sounds plausible as viewed from the deck of Olympus. But as viewed from Obama’s teleprompters, it is abundantly clear that Obama is not playing with a full deck.

    Posted June 22, 2011 at 7:54 pm | Permalink
  25. Malcolm says

    Interesting point, Bob, though I don’t know about the optimism part. If you zoom out enough, Athens is a ripple, Rome a ripple, the British Empire a ripple. Zoom out further, and the human race is a ripple.

    If the large-scale patterns of history are discernible, and I think they are, they reveal a repeated cycle of civilizations rising, accumulating learning and power in their elites, then reaching a zenith after which they become too top-heavy, and collapse. China is an exception, perhaps, but only by virtue of being almost totally static for thousands of years.

    Posted June 22, 2011 at 8:36 pm | Permalink
  26. the one eyed man says

    To Henry: (“Deep down, I am confident you know I’m right.”) Yes, you are right. Extreme right.

    I was not being disingenuous in praising Nancy Pelosi as a superb public servant. While I recognize that many on the right think she has cloven hooves, I think she is a right thinking American. I agree with her agenda and think that under her leadership, the last Congress had far greater achievements than any other recent Congress. I also think she towers above the three Republican Speakers who preceded her: Gingrich, Foley, and DeLay, each of whom was kicked out of the post for moral turpitude, illegality, ethical impropriety, or some combination of the three.

    I certainly do not expect you to agree with this, and I am disinclined to get into a lengthy discussion about Nancy Pelosi. The coals are getting hot and I am about to grill a Flintstones sized piece of meat and then schedule the angioplasty which will be its inevitable consequence. I was merely responding to Henry’s characterization of her as bat shit crazy. In my view, the people in government who really are bat shit crazy are Michele Bachmann, Rand Paul, and so forth. Not Nancy Pelosi.

    Posted June 22, 2011 at 9:16 pm | Permalink
  27. the one eyed man says

    Whoops: meant to write that Nancy Pelosi was unlike three of her predecessors, not the three which immediately preceded her. Denny Hastert served with honor.

    Posted June 22, 2011 at 9:26 pm | Permalink
  28. chris g says

    Chainsaw in a driveway? Someone should do a bitter editorial piece about bike thieves in NYC. They could romanticize the old days when bikes were safe and thieves focused on car stereos.

    Posted June 22, 2011 at 9:43 pm | Permalink
  29. Malcolm says

    “We have to pass the bill so you can find out what’s in it!”

    Posted June 22, 2011 at 9:54 pm | Permalink
  30. “To Henry: … Yes, you are right. Extreme right.”

    Such labeling along the political spectrum is all relative, Peter. If you judge me to be “extreme right”, it must mean you are far more left than I had previously thought.

    I hope that angioplasty goes well for you. BTW, the Japanese have a healthier alternative that has your name on it.

    Posted June 22, 2011 at 11:37 pm | Permalink
  31. Tom Foley was a Democrat, and Tom DeLay was not a Speaker.

    Posted June 23, 2011 at 12:01 am | Permalink
  32. Bat-shit Crazy in San Francisco Bay Area:

    How to Save $220Billion Executing Killers

    Posted June 23, 2011 at 9:02 am | Permalink
  33. the one eyed man says

    You are indeed correct that Tom DeLay was Majority Leader, not Speaker. My point about Foley is not that Pelosi is better than her Republican predecessors, but also better than her Democratic ones, including Foley and Rostenkowski (who was the one ousted in a scandal, not Foley. Sorry, Tom.)

    Regarding capital punishment: there is nothing batshit crazy about opposing it. There are both moral arguments (society should not propagate the act it strives to eradicate) as well as practical ones (it is arbitrarily applied, is often the result of incompetent counsel, costs too much, and is subject to error). Regardless how you feel about the issue, there are reasonable arguments to be made for both sides.

    Posted June 23, 2011 at 9:14 am | Permalink
  34. Malcolm says

    Regarding capital punishment: readers might find this item, from the philosopher William Vallicella, of interest.

    Three Arguments Against Capital Punishment Demolished

    Posted June 23, 2011 at 9:29 am | Permalink
  35. “My point about Foley is not that Pelosi is better than her Republican predecessors, …”

    “I also think she towers above the three Republican Speakers who preceded her …”

    “Regarding capital punishment: there is nothing batshit crazy about opposing it.”

    The bat-shit crazy is the intent to save $220 billion (with a “B”).

    Posted June 23, 2011 at 9:32 am | Permalink
  36. bob koepp says

    I don’t think Bill V quite managed to demolish what he calls ‘the consistency argument’. Speaking for myself, I don’t think that all killing is wrong, but I do think that killing when it’s no longer necessary in order to prevent greater harms is wrong. And, once you’ve got a bad guy in custody, it’s pretty hard to make that case.

    Posted June 23, 2011 at 9:53 am | Permalink
  37. Rostenkowski was not a Speaker either; nor was he a Majority/Minority leader.

    Fact check much?

    Posted June 23, 2011 at 10:11 am | Permalink
  38. the one eyed man says

    Hmmm. Maybe this explains why I can never remember where I park my car at the mall.

    Posted June 23, 2011 at 10:17 am | Permalink
  39. Malcolm says

    Not sure I see where the weakness is, Bob – it seems to me your point doesn’t really address the “consistency argument” per se, but simply makes a moral argument against killing someone who is completely in your power.

    I’m not saying I disagree with you, however, at least not on that point — though that point doesn’t exhaust the complexities of the question.

    Posted June 23, 2011 at 10:36 am | Permalink
  40. bob koepp says

    Well, Bill only addresses the issue in terms of “doing to a person what in other circumstances would be deemed morally wrong.” That’s too easy as a target for his criticisms, since the morality of actions often depends on circumstances. More commonly, people opposed to capital punishment claim that it’s unnecessary killing, where necessity is understood to provide moral cover for defensive killing.

    Posted June 23, 2011 at 12:33 pm | Permalink
  41. Malcolm says

    Agreed.

    Posted June 23, 2011 at 12:37 pm | Permalink
  42. the one eyed man says

    Vallicella mischaracterizes the consistency argument.

    If you murder someone in Longmeadow, Massachusetts, then you are eligible for the death penalty. If you murder someone in Enfield, Connecticut — the adjoining town on the other side of the state border — then you are ineligible, because Connecticut does not have the death sentence.

    Capital punishment is four times as likely to be applied if the victim is a person of color than if the victim is white.

    There are two examples of many which illustrate how the death penalty is not consistently applied. Hence the arbitrariness about who is subject to capital punishment is an argument against it.

    Posted June 23, 2011 at 12:57 pm | Permalink
  43. the one eyed man says

    Whoops – got that backwards. Capital punishment is four times as likely to be applied if the victim is white.

    Posted June 23, 2011 at 12:58 pm | Permalink
  44. Malcolm says

    But that’s an argument against arbitrariness, not an argument in principle against the death penalty. It also would apply to any other punishment as well.

    Posted June 23, 2011 at 1:48 pm | Permalink
  45. the one eyed man says

    Capital punishment is sui generis.

    Posted June 23, 2011 at 4:17 pm | Permalink
  46. Malcolm says

    Well, that’s just an opinion, not an argument.

    Posted June 23, 2011 at 4:27 pm | Permalink
  47. the one eyed man says

    It is sui generis because it is irreversible. If an error is found in a non-capital case, there is the ability to provide some form of redress.

    Posted June 23, 2011 at 4:36 pm | Permalink
  48. Malcolm says

    There is no form of redress that will put back decades spent behind bars.

    Posted June 23, 2011 at 4:40 pm | Permalink
  49. I was going to say that reversible is not synonymous with “some form of redress”, but you beat me to it …

    Posted June 23, 2011 at 4:48 pm | Permalink
  50. Malcolm says

    But this is where Bill gives up pressing the argument any further:

    “If the wrong person has been executed, that person cannot be restored to life. Quite true. It is equally true, however, that if a person has been wrongly imprisoned for ten years, then those years cannot be restored to him. So the cases are exactly parallel. At this point liberals will often say things that imply that their real objection to capital punishment is that it is capital. Well, yes, of course: it has to be. For the punishment must fit the crime, and anything less than capital punishment for certain crimes violates the self-evident moral principle that I put in italics. Justice demands capital punishment in certain cases. If you don’t agree, then I say you are morally obtuse. On this issue which divides Right and Left either you see that justice demands capital punishment in certain cases or you are morally blind. End of discussion. To argue with the morally blind is as pointless as arguing with the color-blind and the tone-deaf.”

    Posted June 23, 2011 at 4:51 pm | Permalink
  51. Malcolm says

    And that’s just an opinion too, not an argument, as he himself admits.

    Posted June 23, 2011 at 4:51 pm | Permalink
  52. Suppose a convicted felon receives a “life without possibility of parole” penalty, and subsequently dies of natural causes in prison. And then DNA evidence proves that he was innocent.

    Would, or has there been established, some form of redress, presumably to his beneficiaries?

    And if so, could an analogous form of redress be established for wrongful capital punishment?

    I’m just asking …

    Posted June 23, 2011 at 5:11 pm | Permalink
  53. Perhaps “natural” causes, or causes that might have been avoided had he not been imprisoned?

    Posted June 23, 2011 at 5:17 pm | Permalink
  54. the one eyed man says

    While it may be true that “there is no form of redress that will put back decades spent behind bars,” nonetheless anyone presented with the choice of door number one (years spent behind bars with a big cash reward when it is discovered that the butler did it) and door number two (being executed) would choose the first option.

    Posted June 23, 2011 at 5:31 pm | Permalink
  55. bob koepp says

    Bill is right that justice requires that the punishment must fit the crime. Justice is a matter of treating people as they deserve to be treated, and there certainly are cases where death is exactly what’s deserved. But morality is a many splendored thing — not just a matter of justice. Even that great champion of justice, Kant, acknowledged that justice can be tempered by grace and mercy, and that to do so is not contrary to morality, even though it means that justice is not realized. Justice, though indisputably a moral good, is a harsh mistress. If we all got what we deserved, if there was no grace and mercy in our lives, we would be even more miserable than we are.

    Posted June 23, 2011 at 8:29 pm | Permalink
  56. Malcolm says

    That’s an important point, but there is a difference between the State and the individual. Grace, arguably, is a personal matter, while it is incumbent upon the State — the Law — to administer justice.

    This often cuts the other way, in cases where the individual yearns for blood…

    Posted June 23, 2011 at 9:40 pm | Permalink
  57. bob koepp says

    Malcolm – I’m not sure about the significance of that difference. The State claims to be a “corporate individual” and seeks to justify at least some if its actions in explicitly moral terms. Also, it’s not unheard of for judges, acting in their official capacity as agents of the State, to be moved by pleas for mercy. Administering justice is clearly the main concern of the courts, but it’s not the whole story.

    Posted June 24, 2011 at 8:59 am | Permalink
  58. Malcolm says

    Here’s something Oliver Wendell Holmes said on this topic:

    “If I were having a philosophical talk with a man I was going to have hanged, I should say, ‘I don’t doubt that your act was inevitable for you, but to make it more avoidable by others we propose to sacrifice you to the common good. You may regard yourself as a soldier dying for your country if you like. But the law must keep its promises.'”

    Posted June 24, 2011 at 9:41 am | Permalink
  59. bob koepp says

    I don’t know if Holmes ever showed “leniency” in sentencing, but if I were to have a philosophical talk with him, I’d ask whether the law has promised always and in every case to prescribe “just deserts.” (Even if OWH never showed leniency, he occasionally demonstrated a flair for injustice, perhaps most notoriously in Buck v Bell. To my knowledge, he never repented and asked for his just deserts for having failed to administer justice.)

    Posted June 24, 2011 at 10:38 am | Permalink
  60. the one eyed man says

    Holmes’s argument is based on the premise that capital punishment is justified if it makes crime “more avoidable” — i.e., that there is a deterrent effect resulting from capital punishment which is greater than the deterrence caused by other punishment (or, more precisely, that the delta in deterrence is significant enough to trump the arguments against capital punishment).

    By sheer coincidence, last week I attended a lecture given by Austin Sarat, a former professor of mine and the nation’s leading authority on capital punishment. I told him that I had always opposed capital punishment for both moral and practical reasons, but I read an article a few years ago which changed my thinking.

    The article described an LA gang whose leaders were serving life sentences without parole. They were truly bad actors, and had their friends on the outside target prosecutors and district attorneys for death. Because there was no possibility of release, the only leverage the state had to prevent this was the threat of execution. In my view, this is an acceptable trade-off: better to save the life of a prosecutor than spare the life of someone plotting to kill him. From a moral perspective, I think this could be extended to other circumstances (e.g., we capture a terrorist and his incarceration is a rallying point which excites other terrorists to act).

    Sarat never revealed his thinking about the death penalty, except to predict that it would eventually be outlawed by the Supreme Court in an expansion of an earlier ruling which banned execution of minors and the insane because of society’s “evolving standards of decency.” I asked him what he thought of my position, and his response was that the strongest argument in favor of capital punishment is deterrence, but the data are inconclusive as to whether execution does, in fact, have a deterrent effect.

    Posted June 24, 2011 at 11:13 am | Permalink
  61. “In my view, this is an acceptable trade-off: better to save the life of a prosecutor than spare the life of someone plotting to kill him. From a moral perspective, I think this could be extended to other circumstances (e.g., we capture a terrorist and his incarceration is a rallying point which excites other terrorists to act).”

    Let it never be said that you and I can never agree, Peter. I agree with you on this point without qualification.

    As for Sarat’s response to your question, namely that “… the data are inconclusive as to whether execution does, in fact, have a deterrent effect”, I think, in the scenario you posit, it is intuitively obvious that it must.

    Posted June 24, 2011 at 11:27 am | Permalink
  62. Malcolm says

    I think it’s important to keep in mind that when Buck v. Bell happened, at the height of the Progressive era, the verdict wasn’t considered unjust: it seemed quite reasonable, in the best interests of the State, to insist that three generations of imbeciles was enough.

    Posted June 24, 2011 at 11:37 am | Permalink
  63. bob koepp says

    There never were the three generations of imbeciles referred to by OWH, but he was all too ready to believe otherwise. In plain language, this is called willful ignorance, and it doesn’t fly as an excuse inside or outside a courtroom. Elitism of the “high born” and judicial impartiality pull in opposite directions.

    Posted June 24, 2011 at 11:53 am | Permalink
  64. Malcolm says

    Well, then the question breaks down into two parts: 1) whether, in the moral context of the day, the verdict was “just”, as based on the the assumptions made by the Court, and 2) whether the assumptions made by the Court were correct.

    Posted June 24, 2011 at 12:29 pm | Permalink
  65. the one eyed man says

    Henry: if it were “intuitively obvious” that the death penalty deters crime, then states with the death penalty should have lower rates of capital crime than states without the death penalty.

    My (limited) understanding is that this is not the case.

    Posted June 24, 2011 at 1:15 pm | Permalink
  66. Peter,

    I guess I didn’t make it clear enough that I was referring specifically to the circumstances you outlined: the case of an incarcerated felon who is plotting and in a position to effect the murder of others.

    In such circumstances, the execution of the incarcerated felon will nullify his ability to continue to plot and to effect such murders.

    Posted June 24, 2011 at 1:26 pm | Permalink
  67. bob koepp says

    Since when are assumptions about relevant facts of the matter an acceptable basis for judicial decisions?

    Posted June 24, 2011 at 1:37 pm | Permalink
  68. Perhaps I am being presumptuous, but on the off chance that your question is addressed to me, bk, I would have to respond, “Since it became apparent (at least to some people) that a need for such judicial decisions exists.”

    Posted June 24, 2011 at 1:42 pm | Permalink
  69. Malcolm says

    Perhaps “assumptions” was the wrong word. I meant it to refer to the Court’s assumption of the stance that the evidence that has been presented is valid.

    Posted June 24, 2011 at 1:46 pm | Permalink
  70. Malcolm says

    Peter:

    Henry: if it were “intuitively obvious” that the death penalty deters crime, then states with the death penalty should have lower rates of capital crime than states without the death penalty.

    No, there’s a hidden assumption there, which is that in the absence of the death penalty all round, the rate of such crimes would be equal everywhere. But if two states have vastly different proportions of murderously violent citizens, the rate in the death-penalty state might still be far higher, despite the deterrent effect, than in the more peaceable one.

    Posted June 24, 2011 at 1:50 pm | Permalink
  71. the one eyed man says

    Well, sure, there are other variables. Maybe crimes of passion are more likely to occur in hot and humid Louisiana than Minnesota. Gun control (or the lack of it) is another variable. However, there are enough states with and without capital punishment that one would think that the differences among them could be quantified and allowed for.

    Posted June 24, 2011 at 2:03 pm | Permalink
  72. Malcolm says

    In principle, I might agree with that. In practice I am not at all sure that it would be possible to arrive at a consensus regarding what the relevant factors actually are. (There are other differences between, say, Vermont and Missisippi, than the weather.)

    But the next question, anyway, would be: if we accept, arguendo, that the death penalty is a deterrent, does that empirical fact affect the moral calculus?

    Posted June 24, 2011 at 2:05 pm | Permalink
  73. bob koepp says

    Sorry, Malcolm, but Buck v Bell has been analyzed to death, and there’s no way to make Justice Holmes look good. He screwed up, let his prejudices cloud his judgment, and a woman who was not at all imbecilic paid the price.

    Posted June 24, 2011 at 2:08 pm | Permalink
  74. Malcolm says

    That’s fine, Bob. My purpose here is not to exonerate Holmes. His qualities as a man are not relevant to this discussion anyway.

    Posted June 24, 2011 at 2:11 pm | Permalink
  75. the one eyed man says

    In answer to your question: yes. Sarat started his speech by asking people in the audience what they thought about capital punishment, then asking them what the strongest argument against their position would be. To those who were against it, his rejoinder was “if you knew that every execution would save eight lives, would you be for it?” Hard to say no.

    However, the burden of proof is on those who favor capital punishment, as there is plenty of weight on the other side of the scale. For one example, you don’t have to go further than yesterday’s New York Times:

    http://www.nytimes.com/2011/06/23/opinion/23coates.html

    Posted June 24, 2011 at 2:28 pm | Permalink
  76. Malcolm says

    I agree, Peter. Far from being the moral absolute that death-penalty opponents often make it out to be, I think the question is an empirical one, even on moral terms, and it’s tricky to make the empirical call. (For many people that difficulty is itself an argument against the death penalty, as you suggest in your burden-of-proof remark.)

    I’ve seesawed back and forth on it myself many times over the years.

    Posted June 24, 2011 at 2:38 pm | Permalink
  77. the one eyed man says

    Efficacy aside, I think there is something barbaric about state sanctioned killing. However, there is something barbaric about war, and I’m not a pacifist.

    Sarat mentioned that when America was young, cattle rustling was a capital crime. His point is that our evolving standards of decency are such that executing someone for a middling crime like stealing cattle shocks the conscience, even in Texas. The general trend is for all capital punishment to be more widely regarded as an affront to our standards of decency, although it goes into reverse whenever there is a particularly shocking crime (such as the current case in Connecticut of an intruder who shot a doctur’s family in cold blood).

    Posted June 24, 2011 at 2:52 pm | Permalink
  78. Malcolm says

    Yes — or the Medford, L.I. mass-murder of just a few days ago.

    Posted June 24, 2011 at 2:54 pm | Permalink
  79. Malcolm says

    Well, we’ve certainly wandered a long way from the original topic here. Also, given the brevity of the orginal post, I think this might be the biggest comment-to-post ratio yet.

    Posted June 24, 2011 at 4:37 pm | Permalink
  80. the one eyed man says

    We Americans love setting records.

    Posted June 24, 2011 at 4:39 pm | Permalink
  81. … and breaking them …

    Posted June 24, 2011 at 4:43 pm | Permalink
  82. Malcolm says

    And making ’em!

    Posted June 24, 2011 at 4:44 pm | Permalink
  83. … and breaking those, too.

    Posted June 24, 2011 at 4:45 pm | Permalink
  84. Perhaps you aren’t old enough to remember how breakable 78rpm records were.

    Posted June 24, 2011 at 5:01 pm | Permalink
  85. Malcolm says

    Me? Oh, yes indeed. They were before my time as current media, but I had quite a collection of them at one point.

    Posted June 24, 2011 at 5:06 pm | Permalink
  86. My parents bought me my first record player, which was mechanically powered, like an old wrist watch (I’ve owned a few of those, too).

    Subsequently, my 78 collection was replaced by my 45rpm collection, which in turn was replaced by a collection of vinyl 33s, which gave way to CDs, … What’s next (beyond iTunes and the like)?

    Posted June 24, 2011 at 5:53 pm | Permalink

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