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Comment by smallddemocrat | Hacker News Reader

>Critics complain that the idea of “evolving standards” is a mere pretense to wrap personal preferences in a scarf of constitutional law. But more than half a century after the concept was coined, “evolving standards” is deeply woven into Supreme Court tradition. The Justices all know that the modern death penalty is a failure. When they finally decide to get rid of it, “evolving standards” is how they will do it.

Does anyone else oppose both capital punishment and the use of judicial fiat to bring about its abolition?

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Somewhat. I'd much rather just amend the Constitution, but that's a slow and unreliable process. I do not see it as inevitable that the Supreme Court will just get rid of it. The Constitution specifically mentions capital crimes so it cannot be argued that the DP is inherently cruel and unusual or otherwise prohibited by the Constitution - sure some people try to make that argument, but like all people that try to cherry pick only the parts of the law that suit their argument, they're wrong. An amendment is the only way to go, and frankly we should be making more use of the amendment process instead of treating the Constitution like some religious artifact that's going to disintegrate if we alter it.

Cherrypicking parts of the law is the entire purpose and design of the USA judicial branch of government. When a situation is ambiguous or inconsistent , judges decide.

I think the parent's point is that the constitution isn't that vague.

You can easily argue that 30 years on death row and 6 stays of execution is Cruel and unusual punishment.

Basicly, while in theory there is nothing inherently wrong with the death penalty our current system is broken.

I'm not in favor of the DP and agree it's both monstrous and unworkable as it is in the USA, and that it's not perfectible. But from a purely legal point of view, abolition has to come from the legislative branch.

I don't think it's quite that black and white. The judicial branch could decide anyone on death row for more than 10 years automatically has there sentence committed to life.

Remember, the judicial branch is supposed to be equivelent to the other two. They don't get to create the law on a whim, but they can get rid of any of them.

Life without parole is also cruel. Sadly not unusual.

Maybe, but it's hard to get me too worked up about this mechanism when the government has people lined up to be killed.

The problem is what, in the end, we do with them? The options are, roughly:

A) Kill them - The current choice. It's disfavored because it's final and we've made plenty of mistakes after doing it enough times. Also, it's more expensive than (B) because we try harder to make sure we've got the right person.

B) Life in prison - Possibly a compromise option, but there are some who say this is equivalent to (A), or possibly even worse. Prison itself is rather detrimental to people, after all.

C) Free them after some time. This is great for lesser crimes (which probably shouldn't result in prison to begin with). But for major ones, we're no longer protecting the rest of society from the murderers and rapists we have locked up. We hope they've been reformed, but prison really doesn't do that very well.

And what do we do with the prisoners who have no reasonable prospects of life on the outside any more? You can expunge a criminal record, sure, but you can't make up for 20+ years in prison and a lack of marketable job skills overnight.

It would be good if we had better avenues for reform.

E) stop trying to apply simple heuristics to people.

The solution is really simple in principle but also really difficult in practice. Treat everyone as an individual, case by case. Use prison as a place for reform and rehabilitation, not punishment. Provide the resources, programs and incentive to help them reform. Prison should not be separate from society, but merely limit the freedoms they have abused (ie.for violent offenders remove the freedom to assault; for organised crime the freedom to associate) until they have proven their willingness to reform and that they no longer pose a threat.

But now you have three problems, doing this is really expensive, really difficult to judge when rehabilitation is sufficient, and really, really hard to put fair and just limits around continued incarceration. Mind you, the current system has all these problems anyway.

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I am going to go ahead and rephrase that as a question for you.

"Do you advocate prison as a place of solely rehabilitation because you're putting yourself and the people that you know in that hypothetical situation?"

no. i have met these people, i agree it is difficult.. and my partner works as a psych for kids effected by family violence and abuse. the stories i have heard from her.. makes me want to castrate those fuckers with a rusty knife. but that doesn't fix anything for anyone.

problem is, you would think for prisoners rehabilitation is easy and punishment is hard. it is the other way around. there was a small long term counselling program running in my state for rehabilitation in prisons. it was massively successful in reducing recidivism, but nearly every prisoner subjected to it said they hated it and would prefer to have a longer sentence. it was cut by the previous right wing government, and now recidivism (and private ownership of prisons) is up.

rehabilitation works. punishment decreases the incentive to reintegrate with society. and if the prisoner resists—and this was the part i was alluding to in my previous post—it is their responsibility and continued deprivation of liberties is required, until they serve out their life or reform.

Option D) used to be really popular. Exile. The problem is there is no unclaimed land to drop them on anymore that makes sense.

Because really, the kind of extravagant violence to justify a death penalty is the kind that makes you want to do several things:

1. Not pay for their livelihood for the rest of their life. US prisoners cost somewhere in the ballpark of $150k a year to house, feed, etc. What a colossal waste of resources. 2. Not kill them, because thats barbaric and primitive. We are better than that. It even costs more to execute people than it does to imprison them forever, since the appeals and actual execution will run to the tune of millions.

So kicking them out of the club we call society seems like a the best option in my view.

The problem is, one, having somewhere to put them (I'm sure Australia would not be as much of a fan of having serial murderers dumped on their shores as they were two centuries ago) and two, keeping them out. But really, it seems to be like the moral / ethical maxima. If you break the most fundamental rules of society, to such a degree you are unfit to ever participate again, you are kicked out.

Manhattan? [1]

[1] http://en.wikipedia.org/wiki/Escape_from_New_York#Plot

> The problem is there is no unclaimed land to drop them on anymore that makes sense.

Build artificial island somewhere and drop them there.

Edit: The moon also is a harsh mistress.

"having serial murderers dumped on their shores as they were two centuries ago"

you are talking about the british, right?

Are there really no uninhabited islands in the middle of nowhere?

Someone would go get them again. Especially if they had boatloads of money socked away.

> It's disfavored because it's final and we've made plenty of mistakes after doing it enough times. Also, it's more expensive than (B) because we try harder to make sure we've got the right person.

It's also disfavored by many people because there are moral objections to state-sanctioned murder. For example, I don't believe it is acceptable to take life of anyone who doesn't pose a serious immediate threat.

Very true, I hope I didn't imply that I was giving a complete list of reasons why people are against it, because I'm not sure a complete list is possible.

Option C is fine. If society is concerns about freeing rapists, society can fund more responsible rehabilitation , prevention , and hospitals. Very few capital criminals are Hitler. Most are desparate, abused, or mentally ill

No, not really. To get the death penalty you have to be either a multiple-repeat offender or do something really horrible and show no remorse. Most people who do this are arguably sociopathic and beyond rehabilitation.

The problem is that any solution we come up with will have to scale, as everyone gets treated the same.

In other words, we'll end up letting these people go free to find more victims:

http://en.wikipedia.org/wiki/Ted_Bundy http://en.wikipedia.org/wiki/John_Wayne_Gacy http://en.wikipedia.org/wiki/Wayne_Williams

What about B': Life in prison + an option for assisted suicide.

There is zero chance of government implementing that sanely. US prisons can't even avoid illegal sterilizing people with fraudulent consent.

What other issues would you prefer be decided for us by unelected judges using nebulous legal doctrines hardly reconcilable with the document from which they supposedly derive, and further, how can you still consider yourself a supporter of democracy despite these thoroughly anti-democratic leanings?

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