There are plenty of people who don’t agree with left-wing economic policies and who are socially conservative who do agree that the death penalty should not exist. I don’t think you have any evidence that any cabinet member secretly wants the death penalty back (though please correct me if I’m wrong). This issue needs cross-party consensus, and this article won’t help the cause.

OP: “The death penalty is almost certainly not coming back. ”

“Almost”? For the death penalty to come back we’d need a) cross-party consensus b) to leave the EU and c) an intelligent debate in the country at large. As none of those things will ever happen I think we can remove the “almost” from the sentence.

Other than that minor quibble, there are good points made in this article. It seems as though the more hard-right Tories are testing the waters to see what they can get away with (as when they attempted to undermine the NMW). If Ed Miliband or anyone on Labour’s side as any sense they will stick up for our current policy of not killing people & explain why.

The easiest comeback on those who want Capital Punishment restored, is what they would plan to do about cases like the Birmingham/Guildford IRA “bombers”, or the “murderer” of Suzanne Dando who I’d have little doubt would be deemed on their initial trials to be guilty of an abhorrent murder worthy of hanging, yet later down the line be found to be innocent parties. I’d ask anyone supporting the return of Capital Punishment to consider looking their families in the eye, and explaining why an innocent man/woman got executed under such a judicial system. Of course we have real life examples of this like Derek Bentley who was later posthumously pardoned, or one murder case where two people hung for the same murder – one innocent – and one guilty who had supplied an in court false testimony against the innocent party.

We can argue to the limit about morals, detterents, costs of imprisonment etc, but this is the one angle on a return to Capital Punishment that I’d feel anyone arguing for it would be skating entirely on thin ice. It just isn’t acceptable in a civilised society to risk the state executing an innocent man.

As it happens this topic came up on UKPR yesterday. As you’d expect, Anthony Wells gives a good summary of recent polling on capital punishment with links to the relevant data:

http://ukpollingreport.co.uk/blog/archives/3802

He also makes the point there is absolutely no chance of Parliament reinstating it. After all if Mrs Thatcher at the height of her pomp with an enormous majority bringing back hanging, what chance does Cameron have with no majority. In truth. I suspect end result may just be a chance for Cameron and co to display their cuddly, social liberal side when they vote personally against.

Is there any prospect of gaining a European consensus for bringing back the death penalty for war crimes and crimes against humanity?

Ahem, try again, this time with grammar.

As it happens this topic came up on UKPR yesterday. As you’d expect, Anthony Wells gives a good summary of recent polling on capital punishment with links to the relevant data here:

http://ukpollingreport.co.uk/blog/archives/3802

He also makes the point that there is absolutely no chance of Parliament reinstating it. After all, if Mrs Thatcher at the height of her pomp with an enormous majority couldn’t bringing back hanging, what chance does Cameron have with no majority? In truth I suspect the end result may just be a chance for Cameron and some of his mates to display their cuddly, social-liberal side when they vote personally against.

Word missing in second line should be “wheezes”; “legal wheezes”. All my links have vanished but there was one here to Guido’s not-very-convincing ideas about deratifying certain ECHR protocols, not whole convention. The point, as @2 explains, is that the law is heavily weighted against it but it may not be entirely impossible.
@2 sorry you found this unhelpful but not sure where you think I suggested any minister wanted it- in fact I say the opposite- and your point about cross- party consensus is exactly the one I’m making.

Sorry, meant @1.

The state can kill as many people as it likes provided we are at war and the killers are soldiers performing their duty. Similarly to kill certain people in the name of justice humanity and love is a duty. It is not a pleasant one and it may not be a cheap or convenient, but justice is not always either.
To oppose the death penalty that is to be the willing dupe of the state and submit to bovine placidity in the face of the unforgivable.
If my or your child, child is abused murdered and left as trash, then I require the murderer to pay a price that whilst not equivalent ( not an eye for an eye, the ancient limitation to revenge ) is at least symbolically of commensurate seriousness. If the state ( and this pre -dates the modern state ) cannot supply that justice then I will kill the killer if I have the means
If those we trust and empower for all our good to regulate the process are too invertebrate to do so then we must all make our own decisions

As for the EU , forget it , if we want to do this we can without any fear .

Ellie, you have not actually explained why you are so determined that child killers should live . Do you have children? Do you seriously think a stay in our plush hotel/prisons is justice or would seem like justice to either the parents or others involved .
Why this squeamishness about death itself , were you hoping to avoid it ? It is not something beyond all imagining dreadful , it is the primary fact of our lives.

@9

People like you make me laugh. You talk such high-falutin’ rhetoric but you have no conception of how ridiculous it makes you sound. “If the state […] cannot supply that justice then I will kill the killer if I have the means” – really, now? Will you? Do you have any idea of how fucked up people become once they are responsible for taking a life? Have you spoken to any soldiers with (say) PTSD?

As the death penalty most definitely will not be even being seriously suggested, I find it hard to have any enthusiasm for any campaign to stop it coming back..
Although I’d like to hear the argument as to why it is so important for a country not to kill a few of it’s worst murderers, rather than having them around for the following half a century.
Our troops are killing people in Afghanistan all the time and no one even blinks or wants to know all the circumstances of how they were killed, who they were and who gave the order to open fire etc. So what’s so precious about Levi Bellfield and half a dozen others?

It doesn’t bother Barack Obama too much. So why are we so different?
I think it might be like our issue with fox hunting. It’s just one of those issues.

If the state ( and this pre -dates the modern state ) cannot supply that justice then I will kill the killer if I have the means

You’re so macho.

The last six paragraphs of this article don’t make sense and contradict what was said in the earlier passages.

Although I’d like to hear the argument as to why it is so important for a country not to kill a few of it’s worst murderers, rather than having them around for the following half a century.
Our troops are killing people in Afghanistan all the time and no one even blinks or wants to know all the circumstances of how they were killed, who they were and who gave the order to open fire etc. So what’s so precious about Levi Bellfield and half a dozen others?

Agreed – it is an interesting question.

As one of the “libertarian” camp, I’d just like to pre-emptively disown this HEAFE fuckwittery from Guido Fawkes. Whatever it is he thinks he’s up to, it’s nothing to do with the rest of us.

Mr. Pill, quite why so many soldiers are incapable of coping with their job is an interesting question but,whatever the reason, I take it you are not recommending an army that issues stern rebukes rather than lethal responses?
“You`re so macho” ? …sigh… Not my point,I am not personally in that position.The point is that there is the clear injustice and contempt for jurisprudence is the consequence.
I think there is a wish to see fair punishment returned to the centre of the system and the poster is righ, whilst the death penalty will not return, this and other calls will apply a moral pressure that over time will see, at least, some progress.
A more realistic objective would be to reinvent prison as an austere and punishing experience that you encounter much earlier and for longer.The current gentle slope could not be better designed for slipping painlessly down onto the downy quilt we have constructed at its end .

I can see direct democracy having a role on immigration , justice, international aid and many other areas where the majority are opposed to the political class. All in all its an interesting day ..what about a petition on open primaries ?

Ignoring this stuff, which I think is without much basis:

“an even darker picture emerges when we shift our gaze to Westminster. We have seen a stream of reactionary ideas pour forth like sewage since the very earliest days of the Coalition, and before”,

I agree with you on the death penalty. It won’t happen because the case doesn’t stack up in the terms it is being made, never mind that it is politically impossible.

On this one, I think Guido is flogging a dead horse.

@14 Can you be more explicit about where you see a contradiction? Am happy to engage.

I do not see how the writer of this article can equate the issue of voting rights for prisoners as being part of a darker picture that will lead inexorably to the possible return of the death penalty.

I have always been an opponent of the death penalty and really there is no likely prospect of it being returned to this nation so I am not sure of the basis of this article which seems a bit scaremongering.

However to suggest that the prime minister expressing a view that equates to his being opposed to convicted prisoners having the right to vote whilst not at liberty as reaching a nadir in terms of penal matters is absurd.

Had it not been for a prisoner bringing a case to Strasbourg about voting rights, it is highly likely that no-one, not even the most liberal supporter of penal reform, would ever have got up a head of steam about this issue which in effect remained unknown to the general public.

To be opposed to prisoners having the right to vote does not make one right wing or part of a darker force. It really is not that important in the scheme of things.

@9 – States who execute people have, and do, execute innocent people. That’s murder, plain and simple. Thanks for highlighting the fact you support that.

Of course you want more crime, and higher re-offending rates – that’s precisely what using prison in the way you advocate means, after all – both the social science you have no use for and the data from multiple countries tells us that. The police are, of course, useful for the social control measures which you’ve also called for. Never mind that we lock up far too many people as it is.

A civilised society should try to undercut the problems which cause crime, rather than sending out large numbers of police and banging up large proportions of their society.

If you love America so much, go and live there.

Anyway; I find the entire concept of “de-rating” ECHR articles bizarre. The ECHR was something the UK had a strong hand in creating, and we already deny British people basic rights as it is – among the rights explicitly denied by our out-out of the EU Charter of Fundermental Rights are rights for minorities, the old and children, rights against unfair dismissals and access to healthcare. Can’t have THOSE here, after all, the peons might complain!

This is an interesting issue, though it too often obscures the more important questions I think we need to ask about our system of justice.

The hang ’em and flog ’em brigade argue that to reintroduce more draconian penalties will discourage those contemplating crimes. I have seen to answer as to why this does not seem to be the case in more retributive countries.

Our system locks up a huge number of people but we have terrible reoffending rates, our prisons are effectively universities of crime and there is far too little done to ensure prisoners can remain on the straight and narrow when they are released. Shouldn’t we be debating how to deal with this problem rather than going back over the arguments for returning to failed Victorian values?

Ironically, though, the best answer as to why so many US states have the death penalty is democracy. One has to ask whether it’s a price worth paying?

I think it’s also noteworthy that the methods used to kill condemned people are normally horribly inhumane. In fact China’s use of a single rifle shot through from the cerebellum to the frontal lobes, while messy, is probably the quickest death provided by a state executioner.

@19
Take this, for instance:

“What kind of government collects a substantial body of research showing that children of unmarried couples have statistically poorer outcomes, and decides that the obvious solution is to make them comparatively even poorer by giving the other families a tax break?”

The ‘poorer outcomes’ in the report were not, I’ll bet, not just about poverty, they were ‘worse outcomes’ in various forms. So it’s not just that they were ‘poorer’ in a financial sense, though I imagine that was one outcome. You then shift to a tax beak which doesn’t actually make them materially poorer, only ‘comparatively poorer’ which isn’t the same thing at all. Mainly, though, you miss the whole point of the tax break which is to incentivise marriage thereby giving more people the benefits of having married couples as parents. This might well be faulty logic on the govt’s part, but it’s not intended as a kick in the teeth for children of unmarried couples, as indeed it isn’t because they’re not made any poorer by it.

You then say: “There is much to fear when a government with these inclinations is given reason to believe that a substantial section of the public not only shares them, but wants to return to a penal policy so extreme the Government hadn’t even considered it.”

It’s not that they’re “given reason to believe” this. It’s well known that a “substantial section”, indeed a majority, of the public wants the death penalty to return, as you acknowledge near the beginning of the article. Having begun by saying that this majority shouldn’t be ignored, you then finish by saying that they should be, er, ignored.

@24 – It’s a form of social engineering, forcing association between people because the state deems it beneficial. The Nordic countries, without that sort of forcing, have ~25% less households, proportionally (about 20% rather than 25%).

That speaks out strongly, to me, for individual support from government. And that’s before you consider issues like many disabled people being effectively financially punished for having a working partner.

Oh – The 20/25% is the percentage of households with children, sorry I didn’t make that clear.

@23 Actually, no, I believe in a comparative rather than an abstract measure of poverty- I refer you to The Spirit Level. As for ignoring the public, I don’t advocate that but it doesn’t mean pandering to them- it can mean explaining why they’re wrong.

Whether we have the death penalty is another of those unfortunate things that we can’t allow the public to decide–because they’d make the wrong choice. So we don’t let ’em. And anyway, why should the public be allowed to decide what sort of country they live in? No reason at all, as far as I can see.

@26 Ellie Cumbo

Actually, no, I believe in a comparative rather than an abstract measure of poverty

Do you also accept that by measuring relative poverty, you make poverty by definition impossible to eradicate? In a soceity where the poorest earn £10,000 per week and the richest £1Million per week (at current buying power), those on £10,000 would be adjudged poverty stricken.

Does that really make sense?

Also, it’s not clear that there is strong feeling regarding this issue from the majority of the population. If everyone is forced to choose between a Snickers and a Twix, you might find 60% choosing the Twix, but in fact most don’t really care either way in unforced (i.e. unpolled) situations. It would be wrong to assert “60% of the population demand Twix”. This is an inherent problem with polling.

Do you also accept that by measuring relative poverty, you make poverty by definition impossible to eradicate?

By definition relative poverty could be impossible to eradicate, unless you measure it by the difference between the richest and poorest, and differences in life-chances

@28 – Yes, but it also means that progress or lack of such on lowering inequalities shows up. Both relative and absolute measures of poverty can be useful, afaik.

And there isn’t strong feeling on the concentration of wealth, falls in household income and inflation? Er…

‘Do you also accept that by measuring relative poverty, you make poverty by definition impossible to eradicate?’

No. If you raise the income of all those households below 60% of median to that level, relative poverty falls to zero on the internationally accepted measure. This is difficult, but it is not ‘by definition impossible’.

To be fair, this is a mistake which Frank Field once made.

It’s also one of those things where we would do a lot of good even if we didn’t manage to end relative poverty but were to reduce relative poverty to 5% as in some other countries.

Leon-

And there isn’t strong feeling on the concentration of wealth, falls in household income and inflation? Er…

Death penalty.

Sunny-

By definition relative poverty could be impossible to eradicate, unless you measure it by the difference between the richest and poorest, and differences in life-chances

Only by entirely eradicating all differences entirely. You don’t seriously propose that do you?

31 Donpaskini-

No. If you raise the income of all those households below 60% of median to that level, relative poverty falls to zero on the internationally accepted measure.

You do realise that as you do that, the median moves as well?

@24, I’m not here to defend the married person’s allowance. As an incentive I can see how it could easily backfire and create more divorce. I haven’t seen the stats and I don’t really care much either way, but as for social engineering, that is what much of modern politics, and especially leftwing politics, is all about. All attempts to use to the tax system to change behaviour is social engineering. Do you also oppose alcohol, cigarette, carbon, petrol taxes as well? Taxes on cigs, in particular, are highly regressive, but most people see cigs as a bad thing and Cameron sees marriage as a good thing, as many people do. Is it the social engineering you object to or this particular cause?

I agree that giving tax breaks to married couples can be seen as discrimination against couples who don’t want to marry, but it does not penalise single parents any more than abolishing the dog license penalised cat owners. It’s got nothing to it and it’s certainly got nothing to do with the death penalty. I’m still not sure what the relevance is there…

@26, I have read The Spirit Level but I also have some knowledge of statistics and I would say that book verges on academic fraud. That doesn’t mean that inequality doesn’t matter, but you’re still comparing apples and oranges and pears in when you equate life outcomes with poverty and poverty with inequality.

To Martin at 3 – unfortunately, the usual response to this argument is that “well they may have been innocent of that particular crime but they were probably guilty of something” – pro death penalty views tend to go hand in hand with a mindset that the police and law never make mistakes and that “not guilty” verdicts and successful appeals only ever happen because of smart lawyers 🙁

@34 – “but it does not penalise single parents any more than abolishing the dog license penalised cat owners”

Of course it does. It makes not being forced into an association by the state a financial penalty. It also encourages sham associations*. And I was responding to your example in 23…

(*I know of a fair few – it’s perfectly legal when both are UK citizens, but…)

Laura @1, You may be right I can remember times within the last decade when leading Tories have called for a return to the death penalty. As recently as 2003 the then Shadow Home Secretary did so. ( http://news.bbc.co.uk/1/hi/uk_politics/3274245.stm ) So I don’t find it improbable that one or more leading Tories might favour the death penalty. Perhaps you are right that it is no longer the case, but I certainly wouldn’t assume that.

While I accept that we could never have capital punnishment in the UK, because it would be more trouble than it’s worth with everyone protesting about it, if I lived in the US, I wouldn’t be particularly campaigning against it either. Although I do think that the US has a particularly harsh and often cruel penal system.

But I don’t think that countries that practice it sparingly are necessarily bad or imoral just because of that either. In Malaysia where I was last year for example, I don’t think many people give it too much thought. Even though executing drug importers is far to draconian in my opinion.

But if a country like Japan executes a maniac serial killer like Tsutomu Miyazaki then I think it’s no loss to the world or anyone, and I quite admire the fact that Japan, though a very civilised country, still has the balls to do something like that.
http://en.wikipedia.org/wiki/Tsutomu_Miyazaki

That they can say ”this guy is so bad, that we’re just going to rub out his miserable existence and try to put the whole bad memory of it behind us.”
Done for only the very worst of killers, I would actually support that. But only if the country was mature enough and there was enough of a consensus that people thought that was the right thing to do. In modern Britain we would never have that mature consensus and there’d be too much wailing and fuss about it.

#31 Donpaskini- No. If you raise the income of all those households below 60% of median to that level, relative poverty falls to zero on the internationally accepted measure.

#33 You do realise that as you do that, the median moves as well?

No it doesn’t. Because it’s a median not a mean/average. It stays in exactly the same place because all those households with increased income are still in the 50% of households with incomes below the median. Because 60% of the median is less than 100% of the median.

“But” you will say “where does the money come from?”. From those above the median, but without taking more from them than will affect their position in the ranking. Because as Hemmingway reminded us*, the rich really are different from us. They have more money.

[Goes away sighing and planning capital punishment for the innumerate]

*Yes I know he took a jibe against himself and pretended he made it himself, but he wouldn’t have done it if it wasn’t true.

Only by entirely eradicating all differences entirely. You don’t seriously propose that do you?

No, I’m not saying economic differences should be eradicated entirely. I’m just pointing out that relative poverty can be eradicated, depending on how you measure it.

If you say the earnings of the richest shouldn’t be more than 300% the lowest (as an example), then its eradicated if everyone is within that band.

“It is therefore immensely frustrating, counter-productive and grist to the right-wing mill that the Twitterati consensus appears to be that the electorate, like a toddler having a tantrum, can simply be ignored” – so are you saying we should follow the wishes of the majority ………….. when it comes to the death penalty?
http://ukpollingreport.co.uk/blog/archives/3802

In the 40 years since hanging was abolished the majority of the general public have been in favour of reinstating the death penalty, and unsurprisingly support for such measures become even more strident eery time a young women walking along on the street is beaten to a pulp with only time for a sexual assault in the final few dreadful minutes of her life.

In other spheres state sanctioned killing may be perfectly acceptable once the right sort of rhetoric has been established to justify such actions (war, abortion, police work, secret service,etc) – personally I am against the death penalty, but would not discount the possibility that there are even worse forms of suffering than the rope (long term category A prison life, for example).

Anyway, for those who really are worried about injustices in our legal system I suggest they take a look at shamefully neglected failings, such as this one
http://www.guardian.co.uk/uk/2011/jun/25/dowler-family-ordeal-change-court-system

I hate the death penalty as its one of the few times I agree with Damon and Newman.

Recent polls on capital punishment have shown that it still has majority support but not the overwhelming majority which used to be seen until the mid-1980s. At the time capital punishment was ended in the 1960s, it was supported by 70% in one poll. Support is now barely above 50%. It is by no means certain that, if there was a referendum, that could be maintained in the face of the traditional shift to the status quo during referendum campaigns.

(Incidentally to Martin #3, Suzanne Dando is alive and well; it was Jill Dando who was murdered)

[43] “Support is now barely above 50%” – more than 50% – isn’t that is what is sometimes referred to a MAJORITY?

Unfortunately democratic principles can result in one or two inconveniences?

BTW – for those interested – interesting commentary and film from the “Victims Commissioner”, Louise Casey
http://www.guardian.co.uk/law/2011/jul/05/murder-victims-court

Why not a return to hard labour?

You asked the question but I didn’t notice you providing an answer?

The notion that anything is currently being done in our prisons relaying to rehabilitation of offenders is risible so the only real purpose of prison is punishment and deterrence. So why not go for a greater deterrent effect per day of confinement?

More bang for your buck!!!!!

I

If there was a danger of the death penalty being reintroduced, this article might have a point. As there isn’t, however, it seems sort of pointless.

Next week on LibCon: “A return of absolute monarchy? Let’s not be complacent”.

There is no constitutional principle in the UK, nor has there ever been, that a proposition supported by 51% of the people in an opinion poll must be enacted unthinkingly into law by Parliament without further debate.

“Unfortunately democratic principles can result in one or two inconveniences?”

Democracy is understanding where direct democracy has it’s weaknesses and ensuring those weaknesses don’t compromise a civil society.

@ 36:

“Of course it does. It makes not being forced into an association by the state a financial penalty.”

Not giving somebody a financial advantage =/= giving them a financial penalty. That’s a bit like saying that when my neighbour wins the lottery I become more disadvantaged.

If you say the earnings of the richest shouldn’t be more than 300% the lowest (as an example), then its eradicated if everyone is within that band.

Given that the average salary in the UK is about £25,000, are you seriously arguing that maximum permitted earnings should be less than £50,000? Good luck with that as a manifesto committment…

@41 As already explained, there is a difference between ignoring a stream of public opinion, and vocally disagreeing with it. I am advocating the latter. And you are right to raise the issue of victims’/witnesses’ treatment in court; I find there to be rather a lot of complacency on that issue too and it’s something I work on in my day job. I may also try to blog about it at some point.

@47 If you read the article, you will have seen that it isn’t about whether the death penalty will come back; it’s about what other illiberal policy concessions may be offered to that section of the electorate who might welcome them. This is why I believe it is important for liberals to speak up and make their presence known too.

Roger,

I understand the disagreement now. I was talking about the real economy, rather than some imaginary constructed one.

It’s certianly true that if you appointed e.g. some kind of Board Of Incomes you could assign whatever incomes you like to every citizen. “You earn £300/week, here’s your cheque”. You can have any distribution you like, for the several days between starting the scheme and what remains of our functional economy collapsing. Fair do’s.

But any actual functioning economy will be some kind of a curve, not a fully canonical normal distribution, but something like it. As such, any shifting of one part of the curve changes the shape of the whole curve. We are all connected in a “Six degrees of Kevin Bacon” kind of a way. You can’t expect to radically alter one set of incomes by fiat and expect the rest of the economy to stay the same shape. It doesn’t work that way. It is like a farmer noting that too many of his potatoes are too small to sell, and he wants less small potatoes. In the real world he can only achieve that by changing the shape of the potato curve; the peak of the bell moves to the right. He can’t just raise the left side of the curve.

@ 52:

I have read the article. And you spend the first third talking about the death penalty. What’s the point of that if you don’t want to imply that there’s a danger of judicial killing making a comeback?

Ellie you say you want to disagree with Public Opinion but other than saying “I disagree” you have not done so. Why is the death penalty wrong ? Or to put it another way , how do you justify the vastly better outcome for murderers than for the children they murder rape torture and so on?
It seems to me that the onus is upon you to demonstrate that departing so obviously natural justice is warranted.

The problem is that when you avoid the subject the impression given is that you are dismissing the case on the basis it is popular relying ,presumably, on the self evidently superior value of your judgements on all / any matter.

[48] “There is no constitutional principle in the UK, nor has there ever been, that a proposition supported by 51% of the people in an opinion poll must be enacted unthinkingly into law by Parliament without further debate” – true, but that wasn’t my point – rather I was highlighting the fact that a consistent majority (over the last 40 years) have been in favour of capital punishment.

[49] “Democracy is understanding where direct democracy has it’s weaknesses and ensuring those weaknesses don’t compromise a civil society” – this can mean almost anything since terms like “weakness” or “civil society” might mean different things to different people, whereas more or less than 50% is an unequivocal measure.

At least be honest enough to admit that democracy (taken to mean the views of the majority) doesn’t provide the right answer when it comes to hanging and so a little bit of sophistry is required to square two conflicting aspirations?

‘Labour must disavow the worst excesses of its own populism in this area, and recall their obligation to speak for the vulnerable and disenfranchised, while Lib Dems need to locate their spine. Compassionate Conservatives, not in my view an entirely mythical species, need to make themselves known.’

This isn’t a Left-Right issue, its a liberal-authoritarian one – and that puts Labour around the guillotine cackling over their nitting as much as the Tory Right.

Ken Clarke is more pragmatic than ‘compassionate’ but he had some perfectly reasonable ideas about reducing sentences a few weeks back – and it was the Left which shot him down.

[56] It’s not a consistent majority, it’s been consistently eroding and is now only a bare majority which will disappear very soon if trends continue. In any case polls about capital punishment are usually taken in the immediate aftermath of a hideous murder, which is highly likely to skew the results.

Seems to me the reason you’re all having such ideological problems with democracy here is that being authoritarian collectivists, the only kind of democracy you can imagine is the blunt instrument of unrestrained bloc voting.

The key to a functional liberal democracy is to understand that a democratic process is the best method of making decisions, but only when a collective decision must be made. Unfortunately ideological authoritarians want a collective decision on everything, such as whether you can smoke down the pub, or whether a teenage girl can buy a bra, or what colour hat one may wear on a tuesday. Then you have this terror of the people not voting how they’re supposed to, so you try to come up with mechanisms that marginalise democracy in favour of decisions by e.g. appointed committees so you can stack said commitee with “sound” people.

The nature of a democratic process is important. As I said above, if you force a vote, everyone has to come down on one side of the fence or the other. But most of the issues rammed through our political process by obsessive compulsive pressure groups- let’s take the smoking ban for instance- are things that most people don’t care much about, and if “the people” had the actual choice of what issues would be legislated upon, it would be quite rare to get a majority sufficient to get legislation passed. Instead of saying, “which way would you vote on the death penalty?” you need to ask, “how many people really care about the death penalty?” and the answer is, not many, just like the smoking ban or teenage bras.

It’s not a consistent majority, it’s been consistently eroding and is now only a bare majority which will disappear very soon if trends continue.

Excellent–so all we need to do is wait ’em out, and eventually we’ll be able to give the public the policy they want–just as soon as they want the right policy.

This isn’t a Left-Right issue, its a liberal-authoritarian one – and that puts Labour around the guillotine cackling over their nitting as much as the Tory Right

Cobblers it has nothing to do with Liberality one way or another , it is , if you like ,a progressive cause but then so was eugenics abolition and , in its day Empire .

Vimothy , we could always keep asking until the public get it right , although one quails at the though of any organisation with quite that much contempt for its voters.
Can you think of one ?

vimothy,

7. vimothy
Whether we have the death penalty is another of those unfortunate things that we can’t allow the public to decide–because they’d make the wrong choice. So we don’t let ‘em. And anyway, why should the public be allowed to decide what sort of country they live in? No reason at all, as far as I can see.

Of course! Why on earth shouldn’t the wishes of 30,919,078 people outweigh the wishes of 30,919,076 people? No reason at all…

A&E,

At least be honest enough to admit that democracy (taken to mean the views of the majority) doesn’t provide the right answer when it comes to hanging and so a little bit of sophistry is required to square two conflicting aspirations?

ISTM no-one has been dishonest about that and there is no sophistry going on. The point people are making is that there is (or should be) more to ‘democracy’ than saying 51% of people outweigh 49%.

Do people really think “democracy” = majoritarian rule? There is a lot more to democracy than that.

Hmm, that stat was 50-70% at the top of the page, now it’s fallen to a straight 50%. Presumably, by the time this thread moves off the LC front page, a clear majority will oppose the death penalty. At which point, we’ll be able to say, “most people don’t actually want the death penalty”, as if what most people want was ever relevant before.

A&E, democracy is not as simple as just more than half of people wanting something. Democracy is about an equal say, of which we all have when electing people that have more time and responsibility to understand a) other laws and precedents and b) the facts and realities; who then in turn have an equal say on delivering outcomes on that subject.

Just because 50% of people in a single question poll say they support something, doesn’t mean that they even really support it when it comes down to it, rightly or wrongly. Asking a single question with a yes or no answer is infinitely different to asking people to consider the various outcomes, conflicts and benefits of the subject and then come up with a measured view.

But of course people don’t do measured en masse, they do reactionary, and reactionary views don’t have any place in a modern democracy, since our political systems are meant to also protect against the tyranny of the majority.

“At which point, we’ll be able to say, “most people don’t actually want the death penalty”, as if what most people want was ever relevant before.”

You’re right, political people will spin whatever they can to make their point. But even if they do this, hypocritically, the point is that on this subject what people want isn’t relevant at all.

Lee,

Right, because any decision taken collectively is ipso facto reactionary.

Consequently, anything that the public want but that we don’t like is reactionary, and, paradoxically, by denying the public the right to come to their own decision on the matter and making it for them, we’re actually supporting democracy. Ya get me? See how that works? Any fule kno that if you let people go around thinking that they’re in charge, democracy will suffer.

The Public Wants What The Public Gets.–At least, it does if knows what’s good for it!

Inclined to agree with Ian B.

Vimothy,

Hmm, that stat was 50-70% at the top of the page, now it’s fallen to a straight 50%. Presumably, by the time this thread moves off the LC front page, a clear majority will oppose the death penalty. At which point, we’ll be able to say, “most people don’t actually want the death penalty”, as if what most people want was ever relevant before.

… as if argumentum ad numerum is or should be the be-all and end-all of decision-making particularly when it comes to taking a life.

Neither side should be talking about introducing the death penalty in such terms.

[68] “as if argumentum ad numerum is or should be the be-all and end-all of decision-making particularly when it comes to taking a life – Neither side should be talking about introducing the death penalty in such terms”.

Who is saying measuring the extent of public opinion is the be all and end all?

I assume if numbers are so easily poo-pooed we might finally see an end to the interminable number of surveys cited on LibCon about how the public see this or that political issue?

“Neither side should be talking about introducing the death penalty in such terms.”

Hahaha, but you just did!

“Why on earth shouldn’t the wishes of 30,919,078 people outweigh the wishes of 30,919,076 people?”

If we don’t win on the numbers, then we shouldn’t be judged on the numbers, but something else?

“I understand the disagreement now. I was talking about the real economy, rather than some imaginary constructed one.”

The “disagreement” was that you didn’t understand what the term “median” meant. Once you got corrected on that, you moved on to your next right wing talking point with some wibble about potato curves and how we are a bunch of authoritarian collectivists.

Once you got corrected on that, you moved on to your next right wing talking point

…because Progressives who all seem to say the same things over and over are independent free thinkers, whereas anybody who disagrees is reading from a script they got from Fox News, right?

Sigh.

I’m sorry you couldn’t understand my point. I appreciate this is probably due to a woeful ignorance of economics common to progressives, but let’s try that again. You can’t adjust one part of the economy without adjusting all of it, because it is all connected together. You understand?

Also, Don, are you arguing that the general tenor of Liberal Conspiracy is not authoritarian collectivist?

So we have vimothy and Paul Newman lining up unambiguously on the totalitarian side. Anybody else? – a & e charge nurse? – damon?

To vimothy and Paul: if public opinion was strongly in favour of castration of gay men because of the danger they thought they posed to children, would you agree that public opinion should have its way?

Paul @ #9:

To oppose the death penalty that is to be the willing dupe of the state

Hmm; so giving the state total power over its citizens, right up to their lives being at its disposal = good; opposing that power is to be the state’s willing dupe? Methinks we’re in upside-down world here.

damon @ #12:

Although I’d like to hear the argument as to why it is so important for a country not to kill a few of it’s worst murderers

Sorry – my mistake. You are unambiguously on the totalitarian side.

Ah, I see how this works–enacting policies that the public favour is totalitarian, and ignoring the public is democratic. Because the public are idiots, democracy functions better when we ignore them.

@ the totalitarians:

I oppose capital punishment on principle; yet even on your own terms – deterrence and retribution – does hanging really work?

It was during the time of the bloody code that Savile said that:

Men are not hanged for stealing horses, but that horses may not be stolen

and yet the crime rate at the time was immeasurably higher than it is today. Just as the highest crime-rates ion the western world today co-exist in the same society as the most barbaric criminal justice system.

@vimothy #75:

Ah, I see how this works–enacting policies that the public favour is totalitarian</blockquote.

Clearly you don't. A view that the state has the right to enact laws on the basis that the state has the right to intervene in its citizens' lives to the extent of ending them in circumstances defined by the state is by definition a totalitarian view. It is wholly irrelevant how popular those laws might be.

My life is not at the state's disposal. End of.

“@ the totalitarians”

Good one, comrade.

“I oppose capital punishment on principle; yet even on your own terms – deterrence and retribution – does hanging really work?”

No, obviously it doesn’t work–but I only support hanging (?) because I feed on suffering and pain and death.

“and yet the crime rate at the time was immeasurably higher than it is today.”

And I mean, it’s not like crime has increased at all since we abolished capital punishment, amirite?

http://www.parliament.uk/documents/commons/lib/research/rp99/rp99-111.pdf

Oh–even homicides, eh? And what with all those advances in modern medicine, I imagine that if we could run this as an experiment and control for them, then your case would be even stronger. Or not…

vimothy,

“Neither side should be talking about introducing the death penalty in such terms.”

Hahaha, but you just did!

“Why on earth shouldn’t the wishes of 30,919,078 people outweigh the wishes of 30,919,076 people?”

If we don’t win on the numbers, then we shouldn’t be judged on the numbers, but something else?

My comment, “Why on earth shouldn’t the wishes of 30,919,078 people outweigh the wishes of 30,919,076 people?”, was a counterpoint to your apparent support of majoritarianism, not a defence or support of either hypothetical side, but making the point about a substantial number of people who’s wishes you would be ‘ignoring’ if you went with the majority, and related to my ‘motif’ in this thread that there is more to democracy than majoritarianism.

If we don’t win on the numbers, then we shouldn’t be judged on the numbers, but something else?

Regardless of whether the numbers agree with me or not, I don’t think it is a good or proper means of making a decision about the death penalty, that was my point at 68. I am sure that you would agree majoritarianism has its limits.

@54 I’m afraid I don’t see how I could have been more explicit that I don’t think the death penalty is comign back, so I guess we’ll just have to leave it there.

@55 Paul, this isn’t a piece about why the death penalty is wrong because a) that’s not what I decided to write about and b) there are a billion pieces out there that will put the case with perfect clarity – to summarise, it’s beneath a civilised society, it promotes violence and research shows it doesn’t act as a deterrent but may in fact increase violent crime by devaluing life. As you can see, then, I’m not trying to avoid the point but I’m not prepared to get into a long discussion on it on this occasions because my piece is about something else (the dangers of ignoring illiberalism) and I don’t think it’s your right to bounce me into talking about something tangential to what I’ve written.

@56 Most iterations of the principles of democracy are in fact very clear that it is more than straightforward majoritarianism. @63 and @65 have put this point extremely well.

@57 I think I was very clear in the article that I regard Labour’s recent record on criminal justice/civil liberties as pretty lousy. I’m not calling for this to be a partisan campaign by Labour – that would be counterproductive in the extreme – even though I’d be delighted to know there was the politicla will int he party for such a thing.

@vimothy #78:

“@ the totalitarians”

Good one, comrade.

The irony is strong in this one…

While it isn’t central to my argument, perhaps you could explain why, if capital punishment deters homicide, the USA, which has capital punishment, has much higher homicide rates than Western European democracies, which do not? I’m aware of the UK record since abolition, but there are many confounding factors in that record.

A Lee Griffin @65 says (? with a straight face?) that “reactionary views don’t have any place in a modern democracy”.

I wonder how he is defining “reactionary views” apart from I suppose views he disagrees with and which are perhaps perceived as dare I say it “right wing”.

It is not, sad to tell, difficult to find “reactionary views” espoused by those on the left. It is also unfortunately quite easy to find a lot of intolerance by many on the left and a tendency to shut down debate. This attitude should not really have any place in a modern democracy.

By referring to “the tyranny of the majority” makes Mr Griffin sound rather Stalinist – do we really want that in a modern democracy?

Just to clarify my own position regarding the death penalty – I am and have always been firmly opposed to it. However, if a government with a majority and a manifesto committment or the public after a fair referendum decide to bring back state murder then as democrats are we to rise up against that?

.

A&E,

[68] “as if argumentum ad numerum is or should be the be-all and end-all of decision-making particularly when it comes to taking a life – Neither side should be talking about introducing the death penalty in such terms”.

Who is saying measuring the extent of public opinion is the be all and end all?

No-one has explicitly claimed that. It is reasonably inferred from what vimothy has said in this thread, but I don’t believe he thinks it is the be-all-and-end-all in every kind of decision.

I assume if numbers are so easily poo-pooed we might finally see an end to the interminable number of surveys cited on LibCon about how the public see this or that political issue?

I can’t speak for LC’s editorial team. I think polls are of interest to see get a feeling for what people might think when asked a question ‘on the street’. Beyond that, I don’t give them much weight.

ukliberty,

I was just pointing out that you are happy to rely on the numbers when they support your argument. At any rate, you relied on them in the comment I quoted.

You can’t simultaneously say, “only half the population supports the death penalty, so we shouldn’t have it”, and then “the number of people who support the death penalty doesn’t matter”–the two positions are mutually inconsistent.

“I am sure that you would agree majoritarianism has its limits.”

Absolutely. But hypocrisy, unfortunately, is unrestricted.

And this is one of those issues where there is plenty of it going around.

[74] “if public opinion was strongly in favour of castration of gay men because of the danger they thought they posed to children” – first of all the only danger to children (in this context) is from paedophiles – not gay men.

Secondly, as far as I know there has not been a majority over the last 40 years in favour of castration of gay men or anybody else for that matter – although I would not be surprised if such sentiments did exist in a significant minority.

Anyway, we all know that we are debating this issue from a purely hypothetical standpoint – there is virtually no chance that the likes of Albert Pierrpoint will find gainful employment in our current judicial system – even our Albert ultimately rejected capital punishment, but only reached this position after being involved in the execution of 600 men and women.

@Paul D #82:

However, if a government with a majority and a manifesto committment or the public after a fair referendum decide to bring back state murder then as democrats are we to rise up against that?

Yes.

However, if a government with a majority and a manifesto committment or the public after a fair referendum decide to bring back state murder then as democrats are we to rise up against that?

You are forced to eat in a democratic restaurant (it is the only source of food in town). The menu offers only two dishes- liver, tripe and onions or bacon in custard sauce. You don’t like liver, but you sure as heck don’t want bacon smothered in custard, so, grudgingly, you order the liver. Again.

Is it reasonable to infer that you are a liver supporter?

vimothy,

I was just pointing out that you are happy to rely on the numbers when they support your argument. At any rate, you relied on them in the comment I quoted.

You can’t simultaneously say, “only half the population supports the death penalty, so we shouldn’t have it”, and then “the number of people who support the death penalty doesn’t matter”–the two positions are mutually inconsistent.

“Of course! Why on earth shouldn’t the wishes of 30,919,078 people outweigh the wishes of 30,919,076 people? No reason at all…” – this is about a substantial number of people being over-ridden, not that as only half support it we shouldn’t have it. The point I was trying to make is that there is more to democracy than majoritarianism.

Japan has Capital punishment and a staggeringly law abiding society. To the often quoted nonsense about the threat of death not deterring I pose this question
” Would it deter you”?

Robin,

That would probably be because Americans commit more murders.

In applied social research the ideal is a controlled experiment where the researcher compares the expected homicide rate conditional on the death penalty with the expected homicide rate conditional on not having the death penalty for each observation.

Obviously, that’s not possible here. Random assignment of treatment solves the selection problem, but that’s not possible here either. Instead what you’ve proposed is just a fallacious correlation is causation type analysis. You need to compare America with America and Europe with Europe. A start might be to ask, what were American crime or homicide rates like before the death penalty was reinstated, and what are they now.

@ 77:

“A view that the state has the right to enact laws on the basis that the state has the right to intervene in its citizens’ lives to the extent of ending them in circumstances defined by the state is by definition a totalitarian view.”

No, a totalitarian state is one in which the state exerts control over every aspect of citizens’ lives. According to your definition, pretty much every country before the twentieth century was totalitarian, which is quite clearly absurd.

@ 80:

“I’m afraid I don’t see how I could have been more explicit that I don’t think the death penalty is comign back, so I guess we’ll just have to leave it there.”

It’s that old rhetorical trick — say “X probably isn’t the case” then write the rest of the piece as if X is, in fact, the case. That way you can stir people up whilst still having a get-out clause if somebody says “But X isn’t the case…”

@XXX

Seems you’re deliberately missing the point. No, the death penalty is not coming back, but other illiberal measures may be brought in to placate the hang’n’flog ’em brigade. That is the point.

if a government with a majority and a manifesto committment or the public after a fair referendum decide to bring back state murder then as democrats are we to rise up against that?

Why label yourself as a “democrat”? Why is democracy the end rather than a means to the end?

@91 XXX

No, a totalitarian state is one in which the state exerts control over every aspect of citizens’ lives. According to your definition, pretty much every country before the twentieth century was totalitarian, which is quite clearly absurd.

Eh? It’s recognised by all sides that (for instance) the British State was far less intrusive 150 or 100 years ago, such that some authoritarian collectivists go so far as to deride it as almost a “night watchman state”.

Prior to the rise of social reformism- that authoritarian collectivism- the State only concerned itself with a limited range of business. The range of state involvement has mushroomed since. Imagine telling somebody 150 years ago there’d be a law defining what design of seat in a carriage a child may sit in, for instance, or at what hours of the day he may buy a beer, or by what method he may kill a squirrel and so on and so on.

Look, the idea that the majority isn’t always right shouldn’t be a get out of jail free card whenever you want to override the wishes of the population. It seems that liberals take the rights of the public to determine their own laws and govern themselves seriously only insofar as they agree on all issues of substance. And wherever there is disagreement–what happens? Does the public win by default? It certainly doesn’t look like it.

Reasonable people can and do disagree about the desirability of the death penalty. But on what basis should society be governed? According to whatever “we” think is best? That’s a consistent argument, but seldom one that is aired in public. Can’t think why that might be…

@ 96 vimothy

“It seems that liberals take the rights of the public to determine their own laws and govern themselves seriously only insofar as they agree on all issues of substance.”

There have been a lot of attempts recently on LC to paint hypocrisy and cognitive bias as problems that are unique to the left. They grow dull.

“Reasonable people can and do disagree about the desirability of the death penalty. But on what basis should society be governed? to whatever “we” think is best?”

There’s no contradiction in saying “I support democracy, but I think democracy came up with the wrong answer on this one”. You can disagree with the majority without objecting to their right to make collective decisions.

@93 Thank you! I am now officially your fan.

@ 95:

Err, yes, that’s kind of my point. If the state one hundred years ago did less than it does today, and yet had capital punishment, claiming that supporting capital punishment is somehow a “totalitarian” outlook is clearly absurd.

CG,

Who said anything about unique to the left? Not me at any rate–I think they could hardly be more generic. People are people are people.

“You can disagree with the majority without objecting to their right to make collective decisions.”

Of course you can, but in practice that isn’t always what happens.

@ 93:

Oh, I’m sorry, I suppose I was just misled by the headline, although in fairness I’m not sure if article writers get to choose the headlines of the pieces they write. Wouldn’t be the first time a Lib Con article has had a misleading headline, either…

@101 We don’t generally get to choose them, no, but given the first line of the piece I’m not sure I think this headline is particularly unhelpful.

@ 103:

Can you really not see why a piece entitled “A return of the death penalty? Let’s not be complacent” and which spends a good amount of space talking about how many people want to return to the death penalty might look like its author is trying to make us think that a return to the death penalty is likely?

Democracy is not in reality the only principle that matters ,freedom peace prosperity expertise and much more are important as well , can you imagine foreign Policy being run by an X Factor style weekly invade/ don`t invade poll?
Similarly it can be unfair on “winners ” in that there will always be more ‘ losers’ who may simply vote their rewards back to them . Since the expansion of the franchise the left has driven a process that has been essentially offering voters other people`s money for their votes. PR facilitates this
On the other hand democracy is a natural brake on the new in that anything ‘new’ will naturally only have a minority of supporters. Conservatives may appeal to democracy for that reason.
For all that, there is a problem if the political class are united against voters. This has been the case on Europe , Crime , Immigration et al .
I `m not sure that avoiding the necessity to make the case has helped anyone and overall more direct democracy would be a good thing . Open Primaries …

@ 100

“Who said anything about unique to the left? Not me at any rate–I think they could hardly be more generic. People are people are people.”

It’s a phrasing thing – if you say “liberals do this” without mentioning conservatives it does sound like you’re singling out the former. If someone said “I’ve noticed that many black people commit crimes”, would you take it on trust that they also realised many white/Asian/etc people committed crimes? Or would you consider that to be a sentence with a barb on it?

“Of course you can, but in practice that isn’t always what happens.”

No, I agree – I just wanted to point out that people who disagree with the will of the people aren’t automatically anti-democratic.

@ 104 Paul Newman

“Similarly it can be unfair on “winners ” in that there will always be more ‘ losers’ who may simply vote their rewards back to them . Since the expansion of the franchise the left has driven a process that has been essentially offering voters other people`s money for their votes. ”

Alternatively, it acts to limit the amount of the available resources that the powerful are able to grab for themselves, by spreading power more evenly across the populace.

@51 – No, but…for example, let’s imagine a tax system where the top level of income tax rate you pay isn’t fixed, but rises for every multiple of the average income? It’s a concept worth exploring, at least theoretically, without the need for a sarcastic discard.

@53 – There are serious, costed, proposals for basic income out there. Don’t let me stop you ranting though.

[93] “the death penalty is not coming back, but other illiberal measures may be brought in to placate the hang’n’flog ‘em brigade. That is the point” – fair enough, but why mention capital punishment at all. since it has only served as a distraction from other areas of the criminal justice system that may require more immediate attention?

“vulnerable and disenfranchised” are terms that romanticise (some) inmates, don’t forget a % have steadfastly refused to take advantage of opportunities (universal education, welfare system, etc) that are simply not available in many other parts of the world.

The balance between the rights of prisoners and rights of victims is a difficult one, but the more I hear from the likes of Louise Casey the more I am inclined to believe that victims of serious crime are being let down – a theme that has received little if any attention on LC (as far as I can remember) perhaps because some are overly concerned with imaginary battles rather than psychological trauma associated with an adversarial judicial process.

@108 – And how are inquisitorial systems, as used in civil-law systems such as France, better?

Because you did rather clearly there call for a change to the way the courts are run, and there’s only one real alternative used by modern countries…

vimothy,

But on what basis should society be governed? According to whatever “we” think is best? That’s a consistent argument, but seldom one that is aired in public. Can’t think why that might be…

But you agree that there are limits to majoritarianism.

It is consistent to say that there are some decisions that are of a kind where no matter if 99.99% of people think we should do something, we ought not do it (let’s leave aside the practicality of that). I would include the death penalty, torture, slavery and ex post facto law among these.

(It may be of interest that while I have little faith in the public I have lots of faith in juries. This is because I think / hope juries are given time to hear both sides of a case and properly consider the evidence put before them. My faith in juries (and cynicism about the public) might be misplaced but I think the basis for it is reasonable. There are of course times when juries have ‘got it wrong’.)

Leon,

Because you did rather clearly there call for a change to the way the courts are run, and there’s only one real alternative used by modern countries…

Um, either that or unspecified improvements to our system (which ISTM is the more reasonable inference from A&E’s comment).

A&E,

The balance between the rights of prisoners and rights of victims is a difficult one,

I don’t understand what you mean by this, because their rights are never weighed up – there is no balance.

“Seems you’re deliberately missing the point. No, the death penalty is not coming back, but other illiberal measures may be brought in to placate the hang’n’flog ‘em brigade. That is the point.”

Of which voting rights for convicted prisoners should not be regarded as one of them.

ukliberty – “It is consistent to say that there are some decisions that are of a kind where no matter if 99.99% of people think we should do something, we ought not do it (let’s leave aside the practicality of that). I would include the death penalty, torture, slavery and ex post facto law among these.”

Let’s not leave aside the practicality. How would the 0.01 % of people be in any kind of position to prevent the will of the 99.99%. Clearly if one were unfortunate enought to be living under a hideous, nasty regime (e.g. the Nazis) then one would aim to not go along with the majority where ever possible – but it would be pretty difficulty to effect any success without outside support.

But let’s be a bit real here. We are talking about our society which forms part of Western Civilisation. There is no reasonable prospect at all of 99.99% or anywhere near that figure supporting torture, slavery, ex post facto laws, return of the death penalty. So what’s the point?

ukliberty continues: “It may be of interest that while I have little faith in the public I have lots of faith in juries.”

Well, no doubt he/she is a member of the public too and not living in a vacuum. Why so little faith in the public which must include lack of faith in human nature, the ability to do good works, be compassionate to one’s fellow neighbour etc? Is it purely down to political views?

@103 As I said, I couldn’t have been more explicit.

@108 a&e charge nurse: Again, I agree that there is far too little debate about the needs and right of victims, but it is essential not to hitch this onto a bandwagon of hardline views about defendants’ rights. They are not a zero sum game; victims/witnesses’ poor experiences of the justice system have more to do with the fact we have a common law jurisdiction (state vs defandant are the parties in a case; victims are unrepresented) than anything to do with our being too liberal, which, compared to the rest of Europe (where victims are on balance treated better) we are not.

@114 – The 0.01% have recourse to the courts, of course. They have *rights*, which can be defended.

I know that those are anathema to you, but…

Paul D,

But let’s be a bit real here. We are talking about our society which forms part of Western Civilisation. There is no reasonable prospect at all of 99.99% or anywhere near that figure supporting torture, slavery, ex post facto laws, return of the death penalty. So what’s the point?

My point, which I thought I’d make very clear, was about the limits of majoritarianism. Those examples are among those things where I draw the line.

And, in fact, substantial proportions of people have supported torture and return of the death penalty (in the latter case, this is made explicit in the OP).

ukliberty continues: “It may be of interest that while I have little faith in the public I have lots of faith in juries.”

Well, no doubt he/she is a member of the public too and not living in a vacuum. Why so little faith in the public which must include lack of faith in human nature, the ability to do good works, be compassionate to one’s fellow neighbour etc? Is it purely down to political views?

I don’t “lack faith in compassion to one’s neighbour” – I have no idea why you mention such things. No, my point here is about the basis for a life-changing decision. To be clear, I trust a juror to come to the right decision because they will spend days, weeks, even months, hearing both sides of a case, even though I would not trust the same member of the public, outside the courtroom, to come to a sound decision on the very same issue. Surely that’s a reasonable position for me to hold?

[112] “The balance between the rights of prisoners and rights of victims is a difficult one” – “I don’t understand what you mean by this, because their rights are never weighed up – there is no balance”.

As I’m sure you know, UKL, the Dowler family were traumatised, perhaps irreparably, during the trial of Levi Bellfield – to my mind it should not be beyond our legal professionals to devise a system that is fair to the rights of the accused without making the process so adversarial that the cost of a conviction may well be the entire well being of a family.

During this agonising process it was known that Bellfield had already been found guilty of murdering 19 year old Marsha McDonnell and Amelie Delagrange (who was 22) – so given that a guilty verdict was almost academic (in sentencing terms) why was the legal process so damaging toward those with a genuine grievance if not to balance the rights of the accused?

Or let’s take another perp vs victim dilemma – let’s suppose a particularly lenient judge gives a rapist a relatively short sentence – it is really fair that the victim should bump into the ex-con during her weekly shop in Tesco because she has no right to know that he has been released on license and is now living 2 streets away?

@119 – So, you want witch-hunts against released criminals, who have done their time in jail, because of (effectively) public release of their whereabouts?

And you want, to, what, take away many of the defendant’s rights to question the victim and victim’s family?

What wonderful solutions for lynch mobs and miscarriages of justice.

&118 A&E etc

to my mind it should not be beyond our legal professionals to devise a system that is fair to the rights of the accused without making the process so adversarial that the cost of a conviction may well be the entire well being of a family.

The thing is, adversariality is an essential part of the common law system. It is an essential protection for defendants, that they must be given free rein to defend themselves. Anything designed to make courts “nicer” is inherently going to dilute that by restraining lawyers.

We haev to remember that the *virtue* of the English law system is that it is somewhat stacked on the defendant’s side in some respects. This is designed to counter the enormous advantages the prosecution have, because they are bringing all the power of the State to bear on the case. It is why you have a right to a jury and a presumption of innocence; these things (particularly the latter) are not “fair and balanced”, they are deliberately unbalanced in favour of the defendent, to give them a better chance against the power of the law.

The complaints that people are being “traumatised” are frankly suspicious. There is nothing happening in our courts that has not always happened. Yes, court cases are stressful, perhaps very so. But there seems to be a general campaign to strip away traditional legal protections, and emphasising/exaggerating stress is obviously a useful tactic in that regard. Stress and anxiety are very real, but nobody can deny that some persons in the modern world tend to, er, lay it on a bit thick for political or financial advantage. We should be cautious in this regard. The Dowlers experienced nothing that has not happened in British courts before.

[119] I raise dilemma, one that I think needs slightly more thought than a hypothetical battle over something unlikely to be reinstated (hanging) – yet you describe it as a “witch hunt”.

Instead of over reacting why don’t you take a moment to read through this report – it says (P41) “Families also spoke of the victim’s reputation being damaged in court by the defence without the prosecution objecting, despite the Prosecutors Pledge committing them to intervene in such circumstances. Intimate family information was often revealed and used by the defence in ways which did not seem relevant, sometimes without intervention by the prosecution. And while they wanted to see justice done in a public trial, the details revealed therein often seemed to cast aspersions on the victim or other relatives which left them ashamed and enraged”.
http://www.justice.gov.uk/downloads/news/press-releases/victims-com/review-needs-of-families-bereaved-by-homicide.pdf

Issues are also raised with regard to the “victim personal statement” – “Since they (VPS) are part of the evidence papers that are served on the defence, the
defendant will see the statement even though it will only be used in the event
of a conviction. Families have highlighted their anger that where there has
been an acquittal, the defendant has seen this deeply personal information
when it would not be seen or heard by the court. Some families want a supporter to read it out their statement in court. Others want to read it out themselves, or via live video link. Most critical for the families is that they be the ones to choose how it is delivered – by a family member, a family supporter, by the prosecutor – or not read out at all in court. However, it is currently down to the individual judge’s discretion to decide when and how it will be read out. So what would seem a small but important role for a family in the legal process is directed by the
court and not within their control”.

121- A&E CN

I don’t understand your argument. Since the VPS is information which the victim has voluntarily decided to make part of the public record, what does it matter that an innocent defendant has read it? Why is it okay for a guilty defendant to know this information, and everybody else if a guilty verdict is returned, but it is somehow not acceptable for an innocent man to know it? What on earth is the problem here?

[122] “What on earth is the problem here” – the problem is the impact of the legal process on the well being of victims, an experience all too frequently described as a secondary form of abuse, typified by the character assassination of Milly Dowler’s father in the Levi Bellfield trial.

The VPS is just one small element in a kafkaesque process, a process that led one commentator to claim “It can only be raw emotion that led the (Dowler) family to say they had paid “too high a price” for Bellfield’s conviction last week, suggesting that they would have refused to testify and risked Bellfield’s acquittal if they had known how they were going to be questioned in court. The one true insight in Dowler’s statement comes when he says that he and his family were “incidental” to the trial”.
http://www.guardian.co.uk/law/2011/jun/27/milly-dowler-parents-family-levi-bellfield

Incidental to the trial? – so if the very people most affected by crime have no confidence in the judicial process (one that is presumably meant to be fair to them as well the accused) why on earth bother playing a game that is very likely to leave them feeling worse than had they simply kept quiet?

@123 A&E CN

So far as one can tell, what upset the Dowlers was the revealing of Mr Dowler’s pornographic preferences. The fact that we are a retarded society in that regard and people are intensely embarrassed about the harmless pleasure of sexual materials is a problem for us to sort out as a society, but it is no justification for some radical change in the court process.

Dowler is kicking up a fuss about his good name, basically. He didn’t want everyone to know about his porn. Now they do. It’s no biggie. Really it isn’t. If you want to help future Mr Dowlers, do something positive; fight for the normalisation of porn against the famileee valoos Right and the feminist Left. That’s your problem, there. Not the court system.

Besides all else, it’s not beyond consideration that, since Dowler has a taste for S&M, thanks to a law introduced under Labour he could have himself ended up in the dock for looking at “extreme” porn. That probably wouldn’t be a very nice experience either.

[124] “He didn’t want everyone to know about his porn” – not entirely surprising given that these details emerged during a harrowing murder trial, an event that was receiving intense nationwide publicity.

Perhaps Bellfield’s team were trying to suggest that it is but a small step to beating your daughter to a pulp as soon as there is a whiff of porn in the air?

But this issues goes far beyond the Dowler family – if interested take a look at the long term effects on families once exposed to the machinations of British, err, justice – same link as [121]

“Also, Don, are you arguing that the general tenor of Liberal Conspiracy is not authoritarian collectivist?”
Ian (Thatcherite right wing libertarian)
You think anyone who doesn’t believe in the property rights of slave owners, the opium wars, reform acts , children acts, surestart, NHS, state education is an authoritarian collectivist

Sorry
and does believe in the reform acts , children acts, surestart, NHS, state education is an authoritarian collectivist

Guttmann. Sigh.

Libertarianism is all about inalienable rights. Slavery is intrinsically impossible under libertarianism, as opposed to under socialism, as we have seen in the USSR, China, Cambodia, etc etc etc.

Furthermore, even under non-communist forms of socialism, socialists routinely conscript people into the army, and into the workforce. My uncle just last year finally died of emphysema contracted as a Bevin boy. Nobody even fucking thanked him for being a slave down the mines. Don’t lecture me about slavery.

A&E, wot Ian B said, and,

During this agonising process it was known that Bellfield had already been found guilty of murdering 19 year old Marsha McDonnell and Amelie Delagrange (who was 22) – so given that a guilty verdict was almost academic (in sentencing terms) why was the legal process so damaging toward those with a genuine grievance if not to balance the rights of the accused?

I don’t understand what you mean by “a guilty verdict was almost academic (in sentencing terms)”: the verdict is not the sentence, and he was being tried for murdering Dowler, which is hardly academic.

“Families also spoke of the victim’s reputation being damaged in court by the defence without the prosecution objecting, despite the Prosecutors Pledge committing them to intervene in such circumstances.”

ISTM that’s a failure of that prosecution team specifically, not a failure of our system in general.

As to the VPS, your link (which is interesting, by the way, and I’m surprised some of it is not already done) says, “The VPS should only be entered into evidence if there is a conviction”. That seems confused. Either it’s evidence, or it isn’t. If it is evidence, then it’s got to be entered before conviction, surely? It isn’t obligatory to make a VPS.

[129] “I don’t understand what you mean by “a guilty verdict was almost academic in sentencing terms” – before the trial Bellfield had already been sentenced to life imprisonment with a recommendation that he should NEVER be released following the murders of Marsha McDonnell and Amelie Delagrange (as well as the attempted murder of Kate Sheedy).

Perhaps the Dowler family hoped for some sort of resolution to their daughter’s murder that might be found in a court of law – instead the family say they felt as though it were they who were on trial.

Bellfield’s guilt was academic in the sense there was little else that could be done to him if found guilty.

The Dowlers are now on record as saying this guilt might have come at a price that was too high for them – this experience has been echoed during other serious crimes.

@128 – Impossible? What a laugh. Surely what people agree between themselves in a libertarian world is up to them? More, without the basic support structures you oppose, many people would enter those contracts for economic reasons.

I personally support freely-entered private contracts between individuals which would horrify many left-wingers, but I don’t have that as a very high priority either. But the key is freely-entered, not on the basis of economic need.

The state should work with each individual separately, as they do in the Nordic Model, to support them and enable them to interact with people socially through their free choice, making true relationships and not false need-based ones.

A&ECN

It wasn’t “academic” in the sense of confirming who actually killed Milly Dowler. It’s worth considering that there is some suspicion that profligate serial killers in the USA have been used to “mop up” unsolved murders and disappearances to get them off the police’s unsolved cases lists. Finding out who has actually done what is important. Whether that is more important to Mr Dowler than his good name, that’s his personal subjective opinion. It has no bearing on the operation of the courts.

It is also worth bearing this in mind; if Mr Dowler were on trial for this or some other crime, do you think the prosecution would have hesitated for a second in dragging out his “perversion” to blacken his character to the jury?

131 Leon

An agreed contract of employment etc is a completely different thing to slavery. You know that.

131 Also-

But the key is freely-entered, not on the basis of economic need.

So, the fact that I’m sitting here right now drawing cartoons as part of a contract I entered into entirely because I need the money to live on, that is illegitimate is it? How many cartoons do you think I’d draw if the State entirely abolished my economic “need”?

(Clue: the answer is less than 1).

74. Robin Levett

You are unambiguously on the totalitarian side.

That’s a bit harsh isn’t it? I only asked to hear the argument against any form of capital punnishment at all. Not for mandatory sentences or anything like that. But what would be so bad about killing a few serial killers for example? Is Barack Obama a totalitarian? Are the two thousand Palestinians who surrounded the police station in Nablus some years ago to demand that a child killer be handed over to them so they could lynch him … are they totalitarians too? That’s very judgemental.

What about all the thousands of residents of Kuala Lumpur who have walked past this mural on the wall of Pudu prison for years and have never thought to damage it?

http://farm3.static.flickr.com/2600/3678437800_ed60c2b465_z.jpg

That wouldn’t have lasted a week in Britain, but I watched commuters streaming past it coming out of a railway station every day.
Does that mean that there’s something wrong with Malysians?
I found them to be pretty cool people in general.

damon @135,

What about all the thousands of residents of Kuala Lumpur who have walked past this mural on the wall of Pudu prison for years and have never thought to damage it?

http://farm3.static.flickr.com/2600/3678437800_ed60c2b465_z.jpg

That wouldn’t have lasted a week in Britain, but I watched commuters streaming past it coming out of a railway station every day.
Does that mean that there’s something wrong with Malysians?
I found them to be pretty cool people in general.

You have already answered that question. Earlier, you said “executing drug importers is far to draconian in my opinion”. Therefore, in your opinion, Malaysians are too draconian if they support the execution of drug importers.

[132] “It has no bearing on the operation of the courts” – I disagree, if enough people who have not been charged with anything are traumatised in a quest for justice then surely we are obliged to consider why our legal system treats them this way?

The Dowler family describe the trial as a “horrifying ordeal” in which they were treated like criminals. Milly’s sister, Gemma, described the day her parents were cross-examined, as worse than when she was told her sister’s remains were found.
http://www.guardian.co.uk/uk/2011/jun/24/dowler-family-bellfield-trial-mental-torture

An experience WORSE than finding the dead remains of your sister – what a marvelous advertisement for the British legal system?

@133/4 – I’m talking about issues like tax breaks for married couples, or denying benefits based on relationships.

But no, I don’t know, in many cases, that there’s a significant difference. The sort of abusive behaviour many employers get away with (especially in my business, games)…

A&ECN

So what do you propose to do? Limit the defence’s cross examination of witnesses? What possible ruleset can you envisage that will somehow reduce this trauma without restricting the defence’s ability to defend in court?

The point is, these things have always been traumatic. In an age when “trauma” and “stress” are invoked, obviously people are going to lean hard on that leverage. If there are ears that will listen, people will make a loud noise. That doesn’t mean that their complaints are automatically requiring of an answer.

We just have to get back to this fact that the cross examination was “traumatic” because it was about Mr Dowler’s sexual proclivities. Understandably, everyone was embarrassed. But in the end, it was just about the truth; he had sexual tastes he would prefer not to be known about, and they were aired in public. That’s tough, but that’s all there is to this. There is simply no case to answer in terms of policy.

You have already answered that question. Earlier, you said “executing drug importers is far to draconian in my opinion”. Therefore, in your opinion, Malaysians are too draconian if they support the execution of drug importers

Yes, too draconian for Britain, but I don’t know how much of my business it is to judge Malaysians on how they run their country. They don’t want to go down the western route where leniency would allow great damage to be done to their society. They will not allow the situation with drugs in American or British cities to happen there. And police it the way we do. Revolving door prison sentences where half the people in prision are in for drug related offences.
They cut all that out by being terribly cruel and heartless to a quite small number of people. A former prime minister of theirs called it ”Asian values”.

I wonder if the gang culture and knife crime in Britain actually would be reduced if the sentence included a serious caning as well.
http://tx.english-ch.com/teacher/jasper/caning.jpg

If you got caned like that for stealing cars and joyriding, you’d certainly think twice about doing it. Of course I would never suggest that we do it in the UK.

[139] “in the end, it was just about the truth” – the “truth”, eh?

So let me see if I’ve got this straight – Milly Dowler’s father (who was not accused of anything) is a witness in a harrowing trial because his 13 year old daughter was abducted, probably raped, and then murdered. Her body was dumped and not found for 6 months yet whether or not Mr Dowler had an interest in porn is an important “truth” that is central to the meaning of this trial.

You see to me, this line of questioning seems more like a charade, or cheap legal tactic (rather than an attempt to get at an important truth) – perhaps somebody could explain to me how Mr Dowler’s viewing habits related to charges being brought against a child killer?

damon,

Yes, too draconian for Britain, but I don’t know how much of my business it is to judge Malaysians on how they run their country.

I don’t understand what you mean by that.

There are obviously wrong things that can be done to people. If Fnordland has a policy of doing those obviously wrong things to people, I don’t see why they shouldn’t be criticised for it.

Chaise@105,

Fair enough.

And it’s not that criticising the majority view is anti-democratic (in fact I’d say the opposite is true), but that preventing the “rule of the people” is anti-democratic.

ukliberty@110,

I’m not sure why you keep using the euphemism “majoritarianism”—just call it democracy, which is what you mean. There are limits to democracy—there you go, I said it. The strongest arguments in its favour are political-economic, to my mind, but like you I’m a sceptic. I don’t believe that every issue is best decided by the popular vote. But I do think that capital punishment should be reinstated. Most of the rest of us do too, and have done for years. In practice, the state has tended to agree with you. What this tells you about the character of democracy in this country is that when the will of the people diverges from the will of the governing class, the system default is the will of the governing class. Quelle surprise! Probably this is the better system—unless our governing class is as bad at decision making as the people collectively, in which case we’re screwed. Good job there’s no signs that this might be the case, eh!

@ 128 Ian B

“Libertarianism is all about inalienable rights. Slavery is intrinsically impossible under libertarianism, as opposed to under socialism, as we have seen in the USSR, China, Cambodia, etc etc etc.”

Um, societies far more libertarian than we have allowed people to sell themselves into slavery. Or are you talking about a perfect, ideal version of libertarianism? If so, it seems unfair to compare it to the real-world versions of socialism above, and in any case, as Leon points out, idealised libertarianism obviously allows for slavery anyway. Surely no good libertarian would deny someone the right to sign a loan contract saying “If I cannot repay the loan, I agree to work as your slave for 10 years”.

As for blaming the socialist societies above for slavery… I think you’ll find that the problem there wasn’t socialism, but totalitarianism. Socialism doesn’t justify slavery, no matter how much you obviously want it too, although evidently it also doesn’t always prevent it.

If you support libertarianism, you should defend it on its own merits instead of making it out to be something it isn’t.

@ Chaise

Nice to see you hard at work, John.

ukliberty. My point is that I accept that people can see things differently in different countries. Malaysians might look at TV programmes like ”America’s toughest prisons” and wonder why the people who are still being violent in prison and fighting the system inside, are just not being strapped to the caning rack and having their backsides thrashed.
It seems a bit barbaric to me a weak liberal type, but is it so much worse than having the huge prison industrial complex that America has to house all the drug offenders?
http://www.youtube.com/results?search_query=america%27s+toughest+prisons&aq=f

Capital punnishment for drug importation is just too much for me to stomach. I’d say it’s wrong anywhere in the world. But I wouldn’t be averse to a bit of caning.
Although I understand that we can’t do it in Britain, as our culture wouldn’t allow it.
In Malaysia, they don’t allow drug ridden ghetos to develop. Or if they do, some people end up getting executed or caned.
I accept that it’s a different part of the world, and their priority is to protect the most people.

@ 143 vimothy

“And it’s not that criticising the majority view is anti-democratic (in fact I’d say the opposite is true), but that preventing the “rule of the people” is anti-democratic. ”

Absolutely. Although IMO that might not always mean supporting the validity of a majority vote.

Say we have a referendum on something, and it turns out as the polls close that the population has been lied to (not talked into a belief you or I disapprove of, but factually lied to) about something central to the issue. For example, imagine that we had a referendum on invading Iraq, and many people voted “yes” because they’d been told Hussein had WMD. After the lie was revealed, you would expect some people to claim the referendum was valid and some that it was not. Who would you say was supporting democracy there?

“I’m not sure why you keep using the euphemism “majoritarianism”—just call it democracy, which is what you mean.”

As said plenty above, majoritarianism is not democracy, merely an aspect of democracy, or more usually a simplified view of democracy.

“What this tells you about the character of democracy in this country is that when the will of the people diverges from the will of the governing class, the system default is the will of the governing class.”

Which is good, since the governing class have plenty more time, and generally more experience, than the general public to make an informed view on these subjects from an objective view point.

“You see to me, this line of questioning seems more like a charade, or cheap legal tactic (rather than an attempt to get at an important truth) – perhaps somebody could explain to me how Mr Dowler’s viewing habits related to charges being brought against a child killer?”

Because, rightly or wrongly, the defense for Bellfield was that he hadn’t snatched Milly because she was instead running away from home and wouldn’t have been in the area as suggested…and the previous police investigation in to the role of Milly finding her father’s porn and state of mind was used by the defense to try and enter enough doubt in to the proceedings that Bellfield couldn’t be found guilty of her murder.

It is unfortunate for the Dowler family that there was such an area of investigation for the defense to try and muddy the waters from, but at the same time it isn’t an unreasonable thing to assume that a defense team would try to highlight alternate possibilities to bring the charge in to doubt. If the police and prosecution have not done a good enough job to tie those possibilities off completely, then they shouldn’t have brought the case to trial.

In this sense it is entirely within the sphere of trying to get to the truth, by ensuring that the truth is not confined to the boundaries that the prosecution team define beforehand.

@144 Chaise

I’m just describing the principle of libertarianism. Maybe an attempt at a real libertarian society would collapse into something else; maybe it wouldn’t, but in a society actually run on libertarian principles, slavery would be impossible. That is not true of a socialist society, which intrinsically, even if run “properly” allows slavery since there are no individuals and no rights; everyone must do whatever is best for the common good, and if that means the State ordering you to work down a cola mine, that’s what you have to do. Libertarianism in principe prohibits slavery, whereas other ideologies, such as socialism, conservatism, fascism, etc, do not do so in principle- indeed they positively encourage it because of the subordinate relationship between citizen and State.

As to contracts; you can sign whatever contract you like, but your rights are “inalienable” so it is impossible to sign away the rights themselves. I can sign a work contract. But if I fail to turn up for work, my employer cannot kidnap me and chain me to a desk in his office. Contracts don’t work that way. In other words, just like now; I can agree to draw some cartoons for a magazine, but if I don’t deliver the best they can do is sue me for any losses incurred. I am not their slave. They cannot buy *me*, only my services.

Fundamental difference.

I wrote a blog a while ago, can’t be arsed to look it up now, that used the deliberately emotive example of a woman who signs a contract to make a porn movie then, on the day, she loses her nerve and backs out. In a libertarian perspective, there is nothing they can do. A contract is not a binding obligation to do what is agreed in the contract; consent is always an ongoing thing. The best the movie makers can do is sue her for damages, if they are significant and it is worth their while to do so. They can’t actually make her f*ck for the cameras if she doesn’t want to. In a free society, consent is always provisional.

(This is why, whether a woman says “yes” to sex does not require her to continue if she changes her mind; if she wants to stop half way through, and the man carries on, he’s still raping her regardless of what she said half an hour ago. Her consent to sex is a form of contract, but does not bind her future actions. That would be slavery.)

Mmm, cola mine.

Lee,

Democracy is simply the “rule of the people”. All of the checks and balances you might associate with democracy are designed to mitigate the unfortunate side-effects of “majoritarianism”.

I’m touched by your faith in the benevolent omniscience of our robot overlords. I wish I shared it, but I look around and it seems like we’re actually governed by idiots, rather than technocratic Vulcan supermen.

Chaise,

Right–in a society where government depends on the assent of the governed, anyone who controls popular opinion can control the government.

I think you’ve missed the context, vimothy, I have faith in parliament (with the various pushes and pulls of various special interest lobby groups) to do the job of deciding what is right much more than the uninformed and gleefully ignorant mass that is the general public. They won’t be right all the time, but they’ll be more right than just following the will of the people.

@ a&ecn #85:

“if public opinion was strongly in favour of castration of gay men because of the danger they thought they posed to children” – first of all the only danger to children (in this context) is from paedophiles – not gay men.

That was kind of the point…

To expand; it is not at all unusual for homophobes to equate homosexuality with paeddophilia; they often throw in a side-order of bestiality and polygamy. Do you really want people that uninformed deciding that it is appropriate for the state to take that kind of action?

Secondly, as far as I know there has not been a majority over the last 40 years in favour of castration of gay men or anybody else for that matter – although I would not be surprised if such sentiments did exist in a significant minority.

Which is neither here nor there. The question is whether you consider that majoritarianism trumps human rights.

[148] “Because, rightly or wrongly, the defense for Bellfield was that he hadn’t snatched Milly because she was instead running away from home and wouldn’t have been in the area as suggested…and the previous police investigation in to the role of Milly finding her father’s porn and state of mind was used by the defense to try and enter enough doubt in to the proceedings that Bellfield couldn’t be found guilty of her murder” – with all due respect, Lee, that is pure bollocks – by that I mean the plausibility of this hypothesis is so far fetched that the defense team might as well have claimed that Milly was abducted by the kind of reptile men David Icke is always babbling on about.
http://www.b3tards.com/v/13bf96a2bf8da0842acf/lizard-man-2450.gif

So Milly saw her Dads porn went to school as usual, came home with her mate as usual was making her home in the usual way (witnessed by a friend of her sisters Katherine Laynes) then suddenly vanished – now this sudden disappearance was all to do with her Dad rather than all of the other evidence, evidence which actually made sense and pointed to ladeez man Levi Bellfield – do me a favour, the porn line of questioning has more holes in it than one of these
http://www.openalc.com/wp-content/uploads/2011/03/colander.jpg

154. I’m not stating the claim is a reasonable one, I’m just telling you why it was brought up. Milly’s father was questioned by police around the subject, that makes it something the defense can bring up.

This is really quite a measured article on the subject, and would recommend it. http://www.guardian.co.uk/commentisfree/libertycentral/2011/jul/04/dowling-defence-lawyer-duty

@vimothy #90:

That would probably be because Americans commit more murders.

Because they are less deterred from doing so, despite the ubiquity of capital punishment there?

You need to compare America with America and Europe with Europe

You’re getting warmer. Was 1960s English society identical to 2011 English society save only that the death penalty for murder was abolished in the 1960s? How does 2011 American society compare – closer (with that difference) to 2011 English than 1960s English?

@ #96:

Reasonable people can and do disagree about the desirability of the death penalty. But on what basis should society be governed?

On the basis that there are limits upon state power defined by the inalienable rights of the individuals making up that society. The right to life as against state interference is one of those rights. It’s not up for vote; it’s a foundational right. From that perspective, it matters little exactly what circumstances the state claims entitles it to kill me; not because my crime (whether it be child-murder or sabbath-breaking) crime isn’t serious enough, but because the state simply doesn’t have that right, and the majority can’t vote the state that right.

A&ECN

You seem to be missing the point. I think everyone here agrees that the attempted defence/line of questioning was threadbare and stupid. The question is simply whether a defence should be free to attempt whatever threadbare stupid defence it desires.

As I pointed out above, the same applies to the prosecution. Dowler’s sexual history came to light because the police thought it made him a suspect. If he’d ended up on trial, the prosecution would undoubtedly have played upon it, portraying him as a filthy pervert.

This is how an adversarial system works; each side does its absolute damnedest to make the best case that it can. That helps ensure the fairest trial, since each side has a zealous advocate. The price you pay for that is that dirty laundry gets washed in public; but it is entirely impossible for anyone as a general rule to declare objectively what particular dirty laundry is relevant and what is mudslinging. You just have to accept that.

vimothy,

I’m not sure why you keep using the euphemism “majoritarianism”—just call it democracy, which is what you mean.

But I understand ‘democracy’ to not just be about majority rule but also include things like representatives elected to a legislature, some kind of executive, a criminal justice system… even ‘human rights’.

There are limits to democracy—there you go, I said it.

I said a couple if times that I’m sure you would agree there are limits, because I don’t think you’re a unreasonable person. But you keep talking about “most people support the introduction of the death penalty” as if that was reason enough to introduce it.

@damon #135:

“You are unambiguously on the totalitarian side.”

That’s a bit harsh isn’t it?

No. I see that XXX (#91) has googled for a definition of totalitarianism, and I feel a little like Jamie Lee Curtis in A fish called Wanda, but here goes:

The definition that XXX puts forward is:

a totalitarian state is one in which the state exerts control over every aspect of citizens’ lives

which in large part I accept. Hence a totalitarian political philosophy is one which considers that the state is entitled to exert control over every aspect of citizens’ lives. I may be unimaginative, but I can’t think of anything more controlling of every aspect of my life than the exercise of the power to end it.

What XXX misses is that if for practical or other reasons a society does not in fact “exert control over every aspect of citizens’ lives”, but nevertheless claims the right to do so should those circumstances change the society’s governing philosophy is no less totalitarian.

I only asked to hear the argument against any form of capital punishment at all.

To a totalitarian (using that term definitionally, not judgmentally), there is no such principled argument as I present here and in my other recent comment.

[157] “The question is simply whether a defence should be free to attempt whatever threadbare stupid defence it desires” – like asking a young woman what type of knickers she was wearing during a rape trial?

Presumably if she was wearing a pair of these she was asking for it?
http://hispointofview.com/wp-content/uploads/2009/06/bracli-single-strand-pearl-thong.jpg

160 A&ECN

What are you actually advocating? Restrictions on arguments based on character? What?

[153] “Do you really want people that uninformed deciding that it is appropriate for the state to take that kind of action?” – there has been a long thread debating the distinction between democracy and majorityism, Robin – I cannot add much more to it.

I am not saying that numbers alone should be the only factor but a consistent opinion held by a majority for over 40 years (on a moral issue) is not an insignificant finding (leaving aside our personal objections to the death penalty) – just to add, if we apply the criteria of being informed (before any credibility is afforded to Joe Bloggs) then the public view could be dismissed on just about all subjects – perhaps that is why it often is, to the extent politicos have to try and keep them sweet when an election is brewing?

[161] please answer the question posed at [160] – is it OK to ask about the knickers?

I have no idea. What case were they involved in? If you mean, is it okay to ask about any particular thing, the answer has to be yes, because any information might be relevant in a court case. It’s like saying, “is it okay to ask about peanut butter?”. It might be, if peanut butter is relevant to the crime.

What is special about this lingerie?

Now, what are you advocating?

damon,

ukliberty. My point is that I accept that people can see things differently in different countries.

Well, that’s so profound isn’t it? What a startling insight.

Of course people see things differently in other countries! The guy next door sees differently to me, fgs. Doesn’t stop us criticising each other.

What you said was that you think the Malaysians are too draconian and you also think it’s none of your business. Fine, but…

Malaysians might look at TV programmes like ”America’s toughest prisons” and wonder why the people who are still being violent in prison and fighting the system inside, are just not being strapped to the caning rack and having their backsides thrashed.
It seems a bit barbaric to me a weak liberal type, but is it so much worse than having the huge prison industrial complex that America has to house all the drug offenders?
http://www.youtube.com/results?search_query=america%27s+toughest+prisons&aq=fI'm happy to criticise the USA and Malaysia for criminalising drug use.

Capital punnishment for drug importation is just too much for me to stomach. I’d say it’s wrong anywhere in the world. But I wouldn’t be averse to a bit of caning. [INSERT PREDICTABLE AND OBVIOUS JOKE HERE missus]
Although I understand that we can’t do it in Britain, as our culture wouldn’t allow it.
In Malaysia, they don’t allow drug ridden ghetos to develop. Or if they do, some people end up getting executed or caned.
I accept that it’s a different part of the world, and their priority is to protect the most people.

So you don’t feel comfortable criticising it, even though you think it’s wrong. Great.

[164] the point is that a court case is not a free for all and any line of questioning should have some vague connection to the crime that has been committed.

So please answer the question – would you allow the defense to enquire about what type of knickers a woman was wearing during a rape trial?

Just to help you the options are either yes or no.

@ 159:

“I see that XXX (#91) has googled for a definition of totalitarianism,”

No, I’m familiar enough with basic political concepts not to have to look them up.

“What XXX misses is that if for practical or other reasons a society does not in fact “exert control over every aspect of citizens’ lives”, but nevertheless claims the right to do so should those circumstances change the society’s governing philosophy is no less totalitarian.”

But there are lots of countries which retain the death penalty but whose governments don’t claim the right to “exert control over every aspect of citizens’ lives”. America, for example.

166. Why are you resorting to strawmen here? Ian’s already said, if it’s relevant to the case, yes. The point being whatever is relevant to a case, however menial, demeaning or emotionally corrupt you personally believe it to be, the defense has a DUTY to pursue.

166

Have you stopped beating your wife? Yes or no, please.

Come on, I’ve answered your question as best as it can honestly be answered. Now it’s time for you to declare what you are actually advocating.

@XXX #167:

But there are lots of countries which retain the death penalty but whose governments don’t claim the right to “exert control over every aspect of citizens’ lives”. America, for example.

I’m sorry, but a country that retains the death penalty does claim the right to exert control over every aspect of citizens’ lives; the US government just doesn’t seek to exercise it in all aspects.

Just look at the philosophy of the Tea Party, however. They say they’re all for small government, as we know from the shenigans over the debt-ceiling; they want the government to fit into US citizens’ bedrooms, however (opposition to DADT repeal and gay marriage for example).

I’m sorry, but a country that retains the death penalty does claim the right to exert control over every aspect of citizens’ lives; the US government just doesn’t seek to exercise it in all aspects.

The “land of the free” thing seems to me to be an “informed attribute”. In practical terms, taking into account the totality of US governance structures, it is no freer a country than EU countries; free in some respects, unfree in others, which is which is in the arbitrary gift of the government.

Particualrly, the USA is these days the primary driver of many totalitarian policies globally, temperance of various kinds being the obvious one.

@ 170:

“I’m sorry, but a country that retains the death penalty does claim the right to exert control over every aspect of citizens’ lives; the US government just doesn’t seek to exercise it in all aspects.”

The US Constitution includes a whole section dedicated to safeguarding citizens’ rights against the government. I’m sorry, but your claim is just wrong.

172 XXX

The US Constitution includes a whole section dedicated to safeguarding citizens’ rights against the government. I’m sorry, but your claim is just wrong.

The US Constitution/Bill Of Rigths only operates when it suits. Hence, freedom of speech has been divided into arbtirary “protected” and “unprotected”, the Interstates Commerce Clause mangled beyond all recognition, the Tenth Amendment is openly recognised to now be inoperative, etc. Try asking a policeman which part of the Constitution justifies his arresting you for marijuana possession, and see how far you get.

168
But why would a defence pursue the colour of a victim’s knickers unless she was parading around with only the knickers on?

If my or your child, child is abused murdered and left as trash, then I require the murderer to pay a price that whilst not equivalent ( not an eye for an eye, the ancient limitation to revenge ) is at least symbolically of commensurate seriousness. If the state ( and this pre -dates the modern state ) cannot supply that justice then I will kill the killer if I have the means.
What if the killer was your child, would you pull the trigger ?
Also a man who watches Surrey cricket side and boasts of violence is usually what I think the kids call a “pussy”

174. precisely the kind of questions and nuance that I believe A&ECN was trying to avoid.

@ 173:

There’s a big difference between imperfectly upholding citizens’ rights and claiming that those rights don’t exist at all.

“Slavery is intrinsically impossible under libertarianism.”
Nonsense, the economic liberals of the 18th and 19th Century supported slavery because of their belief in property rights.
Gladstone, the high priest of liberalism, his first speech was a defence of slavery.

[168] “if it’s relevant to the case, then yes” – in what possible way is a genre of undergarment relevant to rape?

The rape issue has been discussed a great length on LC many times – I cannot recall a single occasion when anybody would be crazy enough to suggest that this type of crime might be viewed differently on the basis of information about knickers!

Maybe I’m missing something – is a certain type of underwear an implied request to be sexually assaulted?

Guttmann,

however true that may be, it is irrelevant. I am discussing the philosophy of libertarianism, not what some historical character who may be subsequently considered “a liberal” may have said or done 150 years ago. Gladstone’s liberals supported the nationalisation of the telegraph system (and would have done it had they not just lost office to the Tories). That isn’t libertarian either.

179 A&ECN

Maybe I’m missing something – is a certain type of underwear an implied request to be sexually assaulted?

I don’t know mate, because you seem to be the only person saying it is.

[174] “why would a defence pursue the colour of a victim’s knickers unless she was parading around with only the knickers on” – I see, parading around in knickers is an implicit request to be raped, thanks for clearing that one up for me.

Presumably if a woman had a tattoo saying “dirty girl” the defense would want to know more about that as well – since such an adornment would be an invitation for a gang bang at the very least?
http://sweet-ladies.net/var/albums/Tattoos_Gallery/dirty%20girl-tattoo.jpg?m=1291250197

the a&e charge nurse, why don’t you just link to the case or tell us more detail about it, and then we can tell you whether or not we think it was right for the prosecution to mention her underwear?

I don’t understand why you are making other people do the work for your argument and one that you’ve neglected to substantiate.

“Furthermore, even under non-communist forms of socialism, socialists routinely conscript people into the army, and into the workforce”.
I think you will find many states (whatever their political affiliation believed in conscription). Tories and liberals brought in conscription in this country for the two world wars, not Labour. In fact Lansbury opposed the move but was decried as a pacifist appeaser
My uncle just last year finally died of emphysema contracted as a Bevin boy. Nobody even fucking thanked him for being a slave down the mines. Don’t lecture me about slavery.
My grandad died in Burma I think he would have preferred to be down a mine.
Also the states you admire the most, for instance the late 18th century UK government, used methods such as the press gang and encouraged slavery.
To rank everyone who opposes you as an authoritarian collectivist smacks of a closed authoritarian mind.
Also looking deeper, as humans don’t we all veer towards the collective.
I have feeling if if we were all rugged indiviualists living out our own existence without contact with others, would the human race have developed passed the age of the flint.

[181] “I don’t know mate, because you seem to be the only person saying it is” – no, that’s not the case – I asked if such questions should be permissible in a rape case – Lee said yes, and seemed to think you were yes as well.

Just to be clear is such a line of enquiry acceptable?

The philosophy of libertarianism, of the sort you adhere to, is about property rights above everything.
Also the philosophy of marxism is about eventually a synthesis of ideas resulting in complete personal freedom. in reality we know it’s bollocks.
Life is about compromise and pragmatism not sticking to a philosophy that is unworkable and hypocritical.
By the way that goes for all philosophies

[183] the question is a hypothetical one – are there any circumstances in which it should be allowed (in the context given)?

As I see it you can either say yes it is – and give the rationale for your opinion.

Or you can say no (as I do) since there are no circumstances in which such a question could have any relevance.

Of course the wider point being made is that court should not be a free for all and witnesses (especially those who have not committed any crime themselves) should not have to pay the price of suffering with some sort of post traumatic stress disorder as a result of the process.

A&E,

[183] the question is a hypothetical one – are there any circumstances in which it should be allowed (in the context given)?

As I see it you can either say yes it is – and give the rationale for your opinion.

Or you can say no (as I do) since there are no circumstances in which such a question could have any relevance.

ISTM I could say,

“I cannot conceive of any circumstances under which the defence might find it necessary but that doesn’t mean there would never be any. I have no other opinion about it absent any further detail about a specific example.”

A&ECN-

Or you can say no (as I do) since there are no circumstances in which such a question could have any relevance.

Well there’s some progress. At least you’ve stated your position now. Presumably you would therefore make certain subjects “verboten” in court? Is that what you are advocating?

This is all a bit silly. We know where you’re trying to lead this discussion. You’re hoping for an INSTANT WINZ by playing the U IS A SEXIZT card; by goading me into saying, “wearing certain underwear means a girl is asking to be raped” or words to that effect.

The big problem you have with this strategy is that I don’t actually believe that so you’re flogging a horse to shreds for no reason.

I don’t even know why you’re focussing on underwear, since such character assassinations tend to focus on a girl’s general behaviour- “she’s a right tart”- not on her lingerie specifics. You have, actually though, curiously undermined your own argument since, by choosing that underwear as an example, you are actually saying that some underwear sends stronger sexual signals than others so the only logical conclusion is that the choice of underwear is an indicator of the girl’s more general sexual attitude. So you appear to have shot yourself in the foot. If you’d been sensible, you’d have avoided giving an example of “sexy” underwear like that, and instead said that no underwear is more sexually provocative than any other. Which would have been silly, but at least consistent.

Is there a case where the defence might want to address the girl’s sexual character, hypothetically? The underwear might be a minor part of that, but it might be significant. Okay, I’ll bite.

Let us imagine that Bob is accused of raping Alice in an alley behind a nightclub. Both sides agree that sex occurred; the prosecution say it was rape, the defence say it was consensual. That is very hard to prove either way. Now, suppose that the prosecution have used as argument that Alice is “nice girl” who is sexually restrained and would not have agreed to sex with a near stranger in an alleyway, therefore it must be rape.

Now, it becomes sensible for the defence to investigate Alice’s character; if they can show she has a history of sexual “easiness”, and was acting and dressing in a sexually provocative way on the night in question, and did so frequently, and thus was the kind of girl who sometimes has casual sex, then that prosecution argument is defeated.

That is not the same as arguing that she was “asking for rape”; merely that the prosecution’s case regarding her character is not valid.

That is just a hypothetical situation in which a girl’s character, if not particularly her knickers, might have relevance in the court. Satisfied?

[188] “I cannot conceive of any circumstances under which the defence might find it necessary” – that’s because there are no circumstances – I’ll bet nobody is brave enough to try and argue that there are?

“I asked if such questions should be permissible in a rape case – Lee said yes, and seemed to think you were yes as well.”

No I didn’t. And I also said that Ian said “if it’s relevant” which was cunningly gleaned from this sentence..

“If you mean, is it okay to ask about any particular thing, the answer has to be yes, because any information might be relevant in a court case. It’s like saying, “is it okay to ask about peanut butter?”. It might be, if peanut butter is relevant to the crime.“

A&E, maybe it’s more a question here as to how the colour of a girls knickers, which seemingly aren’t part of a police investigation (although who knows, the boundaries of this particular “example” seem to only exist in your mind and for your own purposes), is at all comparable to your high horse issue of Mr Dowler and his porn, which was part of a police investigation?

Did you read the guardian link I posted at all?

[189] I m not trying to goad anybody since this would be both pathetic and childish, not to mention extremely disrespectful in the context of our conversations about the experience of the Dowler family – I am trying to establish views about an important principle (what line of questioning is and isn’t permissible during a trial).

Anyway, I’m sure a framework already exists which guides the judge’s action if one side or the other is out of order?

A long way back on this thread I suggested that there is a tension between the rights of the accused and the rights of other participants during criminal proceedings – I feel strongly that the time has come to re-examine this question in the light of the way the Dowler family was treated by Bellfield’s legal team.

“I cannot conceive of any circumstances under which the defence might find it necessary” – that’s because there are no circumstances – I’ll bet nobody is brave enough to try and argue that there are?

There’s not much point in these hypothetical games, but there are certainly scenarios where the clothing worn by the victim might be relevant to the defence.

You could imagine a situation where the defence was trying to demonstrate that an early ‘confession’ was unreliable. In it the defendant was led by a policeman to confess to raping the woman, and described in great detail pulling down her underwear. But his description doesn’t match the underwear actually worn by the victim at the time.

“The accused describes taking down her black underwear?”
“He does”
“And what colour underwear was the victim wearing that night?”
“White”

Not open and shut or anything, but a valid question going to the unreliability of the ‘confession’. I’m not entirely sure what this episode is supposed to prove, other than that meaningless, sweeping generalisations are often meaningless and sweeping. Judges are actually pretty good at shutting down lines of enquiry that are genuinely irrelevant.

“Were the police wrong to ask those questions? The judge accepted it was relevant to Bellfield’s case to explore other potential explanations for Milly Dowler’s disappearance. Samuels had little choice but to use the material, if he was instructed to and if he was to fulfil his task of representing his client fearlessly. As far as the judge was concerned, it appears that defence counsel performed this unpleasant but necessary task with economy and sensitivity. If the questions had not been asked we would soon be hearing about an appeal by Bellfield with complaints that his lawyer had not put his defence before the court. The press might even be publishing stories about the “evidence the jury were not allowed to hear”.”

[192] I’ll post the link again – do you think the point I am trying to make has anything to do with colour or TYPE of underwear?
http://hispointofview.com/wp-content/uploads/2009/06/bracli-single-strand-pearl-thong.jpg

I will look at the guardian item you link to now.

“A long way back on this thread I suggested that there is a tension between the rights of the accused and the rights of other participants during criminal proceedings – I feel strongly that the time has come to re-examine this question in the light of the way the Dowler family was treated by Bellfield’s legal team.”

I feel strongly the other way. This game of who has the most rights is irrelevant. What matters is that the jury get all of the facts that are relevant to a case, the judge in the Dowler trial felt that other explanations of her disappearance would be relevant, whether that was perceived to benefit the victims or the defendant.

The court obviously felt there was a question hanging over the potential for Milly to have simply ran away, you can get emotionally involved in how the family feel about this, but it would be terrible for a trial to only investigate only one avenue that is defined by the prosecution, it would be immensely biased against a person who could be perfectly innocent.

[197] but this is not just about the Dowler case but a recurring pattern were participants (who have committed no crime) are traumatised by the judicial process – a process that has damaged literally hundreds of families.

Louise Casey says “It is often said that a hallmark of a civilised society is how it treats its most vulnerable. This is frequently used in regard to those we incarcerate. I would like to suggest that this could also be applied to those who have a loved one taken from them by a criminal act, through no fault of their own. And if we judge our society on the basis of their treatment – I wonder if we are as civilised as we think”.
http://www.justice.gov.uk/downloads/news/press-releases/victims-com/review-needs-of-families-bereaved-by-homicide.pdf

Needless to say after reading her report the answer is more or less a resounding no.

198 A&ECN

It’s pretty uncivilised to deny somebody a fair trial as well.

“but a recurring pattern were participants (who have committed no crime) are traumatised by the judicial process – a process that has damaged literally hundreds of families.”

A trial is not a place where a gallery of public get to watch a guilty man eviscerated by a sharp tongued prosecutor, it’s a place where the truth is sought. If that means that uncomfortable questions are asked of those that aren’t on trial then that is the price of getting to said truth.

The truth matters more than people’s feelings, when we’re talking about stripping someone of their liberties. Feelings can be mended, if there’s a question about the process the question is more (for me) about the after-trial support that people receive.

As the Guardian article says, we’ve already tipped the balance of things in the favour of the prosecution as it is, perhaps that’s why defense councils are being more vigorous in this way.

@a&e cn #193:

I am trying to establish views about an important principle (what line of questioning is and isn’t permissible during a trial).

And you have had pretty clear responses – for the defendant, any and all lines of questioning that are relevant to (and I’d add probative of) the issues that the trial is intended to determine, namely the culpability of the defendant.

Why did you chose to ask about underwear that juding by the URL is NSFW?

I have major issues with Louise Casey’s report. In particular the idea that there be introduced a Practice direction creating an “overriding principle that ‘the trial process should not itself expose bereaved families to avoidable intimidation, humiliation or distress’”, and requiring that “the treatment that relatives of a murder victim receive in court should preserve their dignity and afford them respect.”

Firstly; there can only be one overriding principle in a criminal trial; and that is that the Defendant be entitled properly to defend him/herself. That includes being permitted to challenge the prosecution evidence within the normal bounds of criminal procedure whether or not the effect of that challenge is to humiliate or distress the victim’s family.

Bellfield was guilty; but it is entirely conceivable that another Defendant in similar circumstances would not be, and preventing him from defending himself because it would involve humiliating the deceased’s father’s could well lead to a wrongful conviction. Tell me again; which side of the argument are you on in relation to capital punishment?

176
I didn’t ask you what A&E was trying to avoid, I asked you why would the defence need to make reference to the colour of a victim’s knickers.
It appears that you think it may be.
As far as the Milly Dowler trial goes, why would the defence seek to ‘prove’ that Milly ran away, surely because a girl runs away from home this doesn’t mean that she is then precluded from being murdered. I really fail to see any logic with this line of questining.

“As far as the Milly Dowler trial goes, why would the defence seek to ‘prove’ that Milly ran away, surely because a girl runs away from home this doesn’t mean that she is then precluded from being murdered. I really fail to see any logic with this line of questining.”

You don’t seem to understand the case, the defense wasn’t trying to claim the Milly wasn’t murdered, the defense’s only job is to try and make the case that it was not Bellfield that did it. My understanding is that Bellfield snatched her while she was on the way home from school (I may be wrong here) and if the defense could prove she ran away then there is enough doubt there that she would be walking back from school past his house. Obviously the case is MUCH more complex than this simplification, but it shows that there is a reason for the defense to call in to question the supposed movements of Milly Dowler before she died if a difference in those movements means the defendant might be innocent.

It’s only right that the jury hear all the alternatives that may be a possibility, and the police questioning the Dowler’s about this line made that a possibility.

“I didn’t ask you what A&E was trying to avoid, I asked you why would the defence need to make reference to the colour of a victim’s knickers.
It appears that you think it may be.”

I don’t “think it may be” anything, there is nothing to make a verdict on as there is no basis for the question (as has been ascertained above). Also, handled just fine above again, is an example of perhaps why someone’s underwear colour may be used. We’re not sitting here stating that underwear colour is important in a rape case, only that *nothing* should be sacred, such limits and sensibilities only enable the hampering of a fair trial.

This is total nonsense, was the defence suggesting that Bellfied would never attack a girl who has run-away? There was also plenty of CTV evidence that Milly got off at the train station, that she had chips with a friend and disappeared off the CTV between the staiton and the flat where Bellfield lived. The defence would have been given that information before coming to trial.
Nothing should be sacred when a defence explores facts surrounding the crime their clients are accused of, but it should be relevant.
In fact, in Bellfields’s case, he would have already been well-known to the jurors but if he had been tried previousy for a crime of abduction and rape against young girls, found guilty, and served his time, the prosecution could not use that information even though it would be relevant in a case where a young girl is kidnapped and killed in the area where he was known to be living.

It seems to me that A&ECN et al are conflating two distinct matters; the first is whether Bellfield’s defence case was plausible, and the second is whether trials should exclude certain types of evidence.

Probably most people would think the first matter, in the specific, was implausible. Nonetheless, this does not affect the question of whether in some other trials, or in the general case, such lines of questioning of witnesses should or should not be allowed; there may be another case where such a line of questioning would have freed an innocent man. We cannot conflate the fact that in this specific case a specific person felt distress, with the more general issue. They really are very distinct matters.

I would also remind those taking the “Bellfield was obviously as guilty as sin” line that there are suspicions that “famous” serial killers have been used to “mop up” unsolved cases which they may not actually be guilty of. HEAFE’s of both Right and Left often say, “well who cares if he is wrongly convicted, he’s a scumbag anyway?” but forget that a wrongful conviction of one scumbag means another scumbag has got away with the murder scot free.

The primary purpose of the courts is to test the evidence as best as they possibly can, even if that leads to discomfort. They are not there to provide a maximal feelgood factor for victims or witnesses at the expense of that evidence testing function.

[205] “The primary purpose of the courts is to test the evidence as best as they possibly can, even if that leads to discomfort” – ‘discomfort’ is a euphemism.
Families are left devastated by the legal process, a process that appears to result in a kind of post traumatic stress disorder in too many cases.

I wonder if non-accused participants are fully aware (because they have been properly informed) of the personal cost in seeking a conviction?

Put another way does not the prospect of such an ordeal behove legal representatives to warn families that further participation may cost them their marriage, mental health and financial security – and in the light of such consequences it may well be in their best interest to steer clear of the courts, as far as their circumstances will allow?

206 AECN

Families are left devastated by the legal process, a process that appears to result in a kind of post traumatic stress disorder in too many cases.

Not getting a fair trial, and being wrongly convicted by an unjust court, that can cause that too.

See the escalation; we’re going from “upset” to “traumatised” to “devastated” to “post traumatic stress disorder”. What’s next, “permanent mental destruction”? “Psychological apocalypse”?

Seriously, what is “too many” and what level of stress is “too much”? Is it unreasonable of me to think that whatever level of stress we reduce it to, by flinging away basic systems designed to make a fair justice system, it will always be “too much” or “too many”?

Psychological reactions are unique to individuals, and one person will shrug off that which traumatises another. You cannot fix this.

Casey’s work with 400 families found (as a result of being chewed up by the courts)

The vast majority (80%+) had suffered trauma-related symptoms;

*Three-quarters suffered depression;
*One-in-five became addicted to alcohol;
*100% said that their health was affected in some way, and eight-out-of-
ten (83%) said their physical health was affected;
*Nearly six-in-ten (59%) found it difficult to manage their finances
following the bereavement;
*One-in-four stopped working permanently;
*One-in-four had to move home;
*Three quarters said it affected their other relationships;
*44% who experienced relationship problems with a spouse said it led
to divorce or separation;
*59% had difficulty managing their finances;
*A quarter (23%) gained sudden responsibility for children as a result of
the killing; and
*The average cost of the homicide to each family was £37,000, ranging
from probate, to funerals to travel to court, to cleaning up the crime
scene. The majority got no help with these costs and some were forced
into debt.
http://www.justice.gov.uk/downloads/news/press-releases/victims-com/review-needs-of-families-bereaved-by-homicide.pdf

Casey says “I did think though, that for families who have suffered a bereavement by homicide, the system would be at its best, both in its prosecution of the
offender and in its care of those who through no fault of their own, relied on it
for justice. However, upon meeting with families who had lost loved ones to
homicide, I found a deeply troubling mismatch between what I expected and
what I found”.

At the very least there should be a leaflet detailing the potential risks of going down the same path as the Dowler family – then at least legal officials could say to prospective justice seekers with hand on heart – “you pays your money you takes your choice”.

And how, pray tell, do you expect people to react to bereavement, let alone bereavement by homicide? What would you expect them to report? “Happiness, calmness and a sense of well being?”

Besides all else, you do realise that self reporting is hopelessly inaccurate?

[210] “What would you expect them to report? “Happiness, calmness and a sense of well being?” – no, obviously not, but I expect having your reputation trashed, then reported in the national media must have been enormously comforting to the likes of the Dowler family.

Look, it is clear you have no concerns about the experience of families damaged by questioning in court – fortunately not everybody shares your indifference.

205
Sweeping statement ‘et al’, whether you are refering to me or not, I am talking about evidence being relevant. Taking the line that Milly Dowler might have been running away is about as relevant as what she ate for breakfast.
What is relevant is that Bellfield was a committed murderer of two other young girls but that would not be allowed to be brought-up in court.

211 Jojo

Under the common law, to convict somebody you must have enough evidence to show beyond a reasonable doubt that they actually committed the specific crime they are on trial for. Do you understand why that is? I mean, why do you think these rules have been put in place over the centuries?

212
You still won’t address the issue of ‘relevance’, now you are accusing me of misunderstanding the reasons why evidence must add-up to ‘beyond a reasonable doubt’ in order to convict. Just address the issue of ‘relevance’

Jojo, what issue of relevance? Are you asking me to form a judgement on whether in this specific case this particular evidence was relevant? I mean, you do realise that that’s just an “armchair quarterback” opinion, as Americans would say?

Otherwise, I’m not sure what question you’re asking.

@XXX #172:

The US Constitution includes a whole section dedicated to safeguarding citizens’ rights against the government. I’m sorry, but your claim is just wrong.

Not as written it didn’t; there’s a reason that the First Amendment is so-called. And what has been amended can be unamended – by voting on it.

I’d also be more impressed if the 8th had been interpreted as rendering capital punishment unconstitutional; but SCOTUS didn’t agree.

The Bill of Rights has been interpreted as permitting slavery; capital punishment; prohibition (by amendment); criminalisation of sale, possession and use of sex toys etc etc. Is this not interference in all aspects of a citizen’s life, from sexual proclivity to termination?

A&E

Look, it is clear you have no concerns about the experience of families damaged by questioning in court

Oh, fuck off.

@208. the a&e charge nurse: “At the very least there should be a leaflet detailing the potential risks of going down the same path as the Dowler family – then at least legal officials could say to prospective justice seekers with hand on heart – “you pays your money you takes your choice”.”

I suspect a&e that you have lost track of the Dowler family experience. The Dowlers didn’t do anything; the path that they took was to report the absence of their daughter to the police.

Dad was suspected by police as a potential suspect (the norm in such circumstances) and that information was provided to the press (presumably by a police employee). The leak was wrong and evil. Leaking must become an on the spot removal from the job offence (subject to appeal). It costs a lot of money to train a copper but it costs us lots more to employ dodgy coppers.

[216] oh, I do love carefully thought out comments ……. any chance of making one?

@ 215:

“Not as written it didn’t; there’s a reason that the First Amendment is so-called.”

It didn’t; but it does now. The reason the Constitution didn’t originally have a Bill of Rights is because the Founding Fathers didn’t think one would be necessary, because they thought that they’d included enough checks and balances to ensure that no government would be able to get away with infringing people’s rights too severely. Hardly support for your contention that totalitarianism and support for the death penalty are inextricably linked.

“And what has been amended can be unamended – by voting on it.”

Theoretically yes, but the Constitution as it currently stands (as opposed to whatever hypothetical constitution you might want to come up with) doesn’t give the government the right to control every aspect of a person’s life.

“The Bill of Rights has been interpreted as permitting slavery; capital punishment; prohibition (by amendment); criminalisation of sale, possession and use of sex toys etc etc.”

It’s also been interpreted as providing protection for free speech, the right to bear arms, and so on. Keeping government out of people’s lives, in other words. To claim that the US government has the right to interfere in every aspect of people’s lives is just ridiculous.

“Is this not interference in all aspects of a citizen’s life, from sexual proclivity to termination?”

No. And it’s certainly not totalitarianism.

[217] for the n’th time this is NOT just about the Dowler family although their experience has been used as one way to open up wider debate.

The police or the courts can no doubt force families to do all sorts of things so that characters like Bellfield can receive justice – but a family that starts off with no expectations from the legal system is in a very different position psychologically from one that hopes to find some sort of redemption through the legal process?

You may not agree with my views about families who find themselves in such unchartered territory but I am grateful that you at least had the courtesy not to tell me to fuck off.

The lack of interest in their plight (if we take this thread as a microcosm) tends to coincide with Casey’s report of official indifference and public ignorance.

XXXX

The US Constitution enumerates a federal power to oversee trade between the several States. In the 1930s, this was interpreted such that the act of growing corn on a private farm, for one’s own consumption, which would not be traded, is considered to affect interstate trade (since by eating your own corn, you might not buy some from another State), thus allowing the Federal government to arbitrarily intervene in any industry in any way that it so desired.

A constitution is only as good as the people who wield power over its interpretation.

The lack of interest in their plight (if we take this thread as a microcosm)

I’d just like to take this opportunity to reiterate that “oh, fuck off”.

It is deeply ironic that the person banging on about unjust questioning consistently uses such irrelevant, insulting and underhanded argumentation. I can just see A&ECN as a lawyer,

“So Mr Dowler, should these panties be used in evidence?”

“I, er, what? I… what have panties got to do with..?”

“DON’T YOU CARE ABOUT RAPE VICTIMS YOU MONSTER?!!111”

@221 – I’d argue that it’s a chronic issue with codified constitutions, that rather than practice changing via law makers (as it does with uncodified ones), it changes through the will of of judicial rulings from a tiny number of individuals.

[222] this thread has now reached over 200 comments – what do regard as your most compelling statement so far that you regard the damage done to families as being in any way significant.

You see the first thing about addressing a wrong is recognising that it exists in the first place – so far I have not seen one jot of evidence that any such recognition exists on your part.

Quite the opposite in fact, including bizarre rationalisations about how self reporting is unreliable – the average personal cost to families (associated with murder) has been put at £37k.
Perhaps this figure is a figment of their imagination as well?

@220. the a&e charge nurse

I don’t recall any occasion in the time that we have been commenting on LC that either of us has ordered the other to fuck off. Although I may have earned it a few times 😉

“The police or the courts can no doubt force families to do all sorts of things so that characters like Bellfield can receive justice – but a family that starts off with no expectations from the legal system is in a very different position psychologically from one that hopes to find some sort of redemption through the legal process?”

Can we separate that argument, please?

Few families/survivors will feel that redemption is delivered by judicial process. Redemption is more than that.

Everyone who is sucked into a crime investigation has life probed. Lifestyle is probed, whether it is ultimately relevant to the investigation or not. That lifestyle information is “private”, unless it is pertinent to the alleged crime.

224 A&ECN

You are begging the question by presuming that there is “a wrong” and furthermore that this wrong requires a response.

Let’s use an example. Suppose I do a survey of men whose wives have run off with another man, and I find (unsurprisingly) that many were depressed, financially suffered, reported poorer health, and so on and so on.

Does this mean that there is a “wrong” that we must address? And if somebody replies that such responses are what one would expect from having a shitty life experience, but there’s nothing much anyone can do, is it fair to accuse them of being uncaring?

I would expect people to have a shitty time after losing somebody to homicide. Indeed, many people are depressed, unwell, finacnially disadvantated by “everyday” deaths. Heck, my aunt only lived a week after my uncle’s funeral. Coincidence? Or did losing him kill her as well? Who knows?

You can give people as much support as you like, but to intimate that they are somehow not going to suffer negative conseuqences of such an experience is absurd. It is a very great stretch to blame it all on the court system, or on the government. Tearing apart the common law protections for defendants, which seems to be what you are asking, is unlikely to much help the bereaved, but is certain to cause another harm of making trials less fair.

Your arguments are suspiciously redolent of the right wing hangers and floggers who loudly shout that criminals have it too good and nobody cares about the victims. Which is bollocks, but plays well in the Daily Mail.

So far as we can tell in the Dowler case, the court system did its job, and thoroughly properly. I feel sympathy for the Dowlers, but we cannot tear down basic protections in order to make them feel better. There is justice at stake.

I think the uk would have have to leave E.U. if death penalty was reintroduced.

“Your arguments are suspiciously redolent of the right wing hangers and floggers who loudly shout that criminals have it too good and nobody cares about the victims. Which is bollocks, but plays well in the Daily Mail” – just as I suspected you simply refuse to engage with issues raised by research into the experience of families exposed to certain aspects of our legal system.

‘Worse than hearing about the remains of a dead sister’, according to one individual, but still self reporting is so unreliable isn’t it – I wonder why on earth psychiatrist bother to talk to any of their patients – perhaps you could enlighten us?

Having moved from one vapid form of abuse (telling posters to fuck off) – you have now moved to another, in the form of linking arguments you disapprove of, to dreary associations with the Daily Mail.
I am only surprised that you have managed stopped short of invoking the usual bogeymen like Mel P and Jezza Clarkson.

In short you have set up a false dichotomy – being concerned about the experience of families (such as the Dowlers) equates with a desire to scrap fundamental checks and balances when it comes to the rights of the accused.

Any reasonable person can see that such a dichotomy is patently rubbish?

@a&e cn #228:

In short you have set up a false dichotomy – being concerned about the experience of families (such as the Dowlers) equates with a desire to scrap fundamental checks and balances when it comes to the rights of the accused.

No; that’s your actual stated position. You seem to want a priori to rule out relevant lines of questioning on the part of the accused. What after all was the point of your picking on the knickers example? We still haven’t heard a straight answer from you on that.

As to whether our technocratic overlords are better at governing than we are, I’d say that it depends. I don’t see any reason to expect that the public would be able to determine the optimal capital ratio for retail banks, or whatever, but equally no reason to see why they wouldn’t be able to determine whether they would prefer to live in a society in which some criminals are executed or one in which they are not. I mean, is it really so hard?

Some commenters here seem to think that this is an objective question with a right and a wrong answer. Since they know the right answer, what does it matter if most people think they would prefer something different? Obviously they are wrong. And anyway, capital ratios, etc.

But there is no knowable social welfare function that allows anyone, our technocratic supermen or otherwise, to make an objective judgement about whether society would be better off with capital punishment or without it. It comes down to taste and discretionary power. Our rulers would prefer to live in a different society to the rest of us. Since they are our rulers, and they have the discretionary power, reality has to do its best to conform to their will, and not vice versa. This may not be a bad thing. Perhaps our rulers are a lot smarter than we are and naturally have a talent for this sort of thing. But a policy is not ipso facto good simply because they chose it, any more than every dictatorship is equally successful. Singapore>>>>DR Congo.

@ 221:

But given that the Constitution has also been interpreted to strike down government powers, it’s clearly false to say that the US is a totalitarian country.

A&E,

Having moved from one vapid form of abuse (telling posters to fuck off) …

That was me. And I only addressed you, no-one else, because I believed that was the most merited by your sanctimonious drivel @210 – I think it’s ‘abusive’ of people to attribute false motives to their opponents. If you want a reasonable discussion, try not doing that.

@156. Robin Levett,

“Because they are less deterred from doing so, despite the ubiquity of capital punishment there?”

The US has different rates of crime than European countries. European countries have different rates of crime than each other. They are all different countries! If the death penalty was rescinded, do you think that homicide rates in the US would come down to European levels? But they must do right—if they have the same approach to capital punishment, then obviously their societies are the same in all other ways.

I don’t know how to explain to you how faulty your reasoning is here. It’s like saying, look, whenever it rains, you see people with these umbrella things; whenever it is sunny, you don’t—therefore, they must be causing it to rain, so if you all stop carrying umbrellas, it will stop raining. Or looking at mortality rates in hospitals and concluding that going to hospital is bad for you.

The question we want to answer is if America had never reinstated the death penalty, what would its crime and homicide rates look like? You cannot answer it simply by pointing to societies with lower crime rates and no death penalty. Hello, selection bias.

“You’re getting warmer.”

Why don’t you have a look at the data—What do you notice about crime rates in the UK before and after the death penalty was abolished? What do you notice about crime rates in the US before and after the death penalty was reinstated?

“On the basis that there are limits upon state power defined by the inalienable rights of the individuals making up that society.”

That seems fair. But while you are worrying about protecting the innocent and the guilty from the state, you are failing to protect the innocent from the guilty. I would like the state to fully monopolise violence. You would not, because you think that the state has no right to monopolise violence. Consequently, in your world, we see more non-state violence. This should not be surprising. One can prevent the state from executing murderers, but then, murderers aren’t as interested in your inalienable rights, alas.

“but equally no reason to see why they wouldn’t be able to determine whether they would prefer to live in a society in which some criminals are executed or one in which they are not. I mean, is it really so hard?”

The public don’t have a right to make that decision, nor do politicians. Politicians seem to (in the large part) realise this, the public (in the large part) do not.

“just as I suspected you simply refuse to engage with issues raised by research into the experience of families exposed to certain aspects of our legal system.”

It’s not that we’re not engaging with the “issues”, we’re questioning the validity of the findings. You quoted above about the £37k cost to a family of a murder victim. No-one’s disputing that figure, however we dispute your loose and lazy link to what “victim’s families” go through to seal a conviction. I’ve no doubt there is a lot of cost to a family that goes through that kind of trauma, of losing a loved one and dealing with the hole their departure leaves.

Does this mean that putting barriers in the way of a fair trial would lessen that cost for the majority of murder victim families? I don’t think you have any evidence that suggests that’s the case, though I’d be happy to see some.

You’re conflating the emotional state of people with the direct impact of individual actions in a court room, and it’s immature to do so. I would posit that ANYONE that has to go in to a court room and hear every sordid detail of evidence about how their child or sibling or parent was killed, maybe captured, raped even….will come out traumatised more often than they feel a weight has been lifted. The very action of having to face reality rather than live with denial (a human coping mechanism for stress) can have huge psychological consequences.

But this can happen even if the victim’s families are treated with the utmost respect and wrapped in cotton wool. You don’t seem to be prepared to acknowledge this.

“In short you have set up a false dichotomy – being concerned about the experience of families (such as the Dowlers) equates with a desire to scrap fundamental checks and balances when it comes to the rights of the accused.”

You have stated that you want certain actions of the defense council to not happen in order to protect the victims, in doing so you are limiting the chance at a fair and full trial, you’re encouraging the jury to be left less than fully informed of potential relevant matters out of wanting to mollycoddle the victims families. It’s not a false dichotomy, you can’t have one without the other.

If anything it is you that has come up with the false dichotomy, by claiming we don’t care about the victims of crime because we wish for trials to be fair, open and thorough.

“What do you notice about crime rates in the UK before and after the death penalty was abolished?”

You can’t use this data, it’s no longer relevant to the modern day, even if (chances slim as they are) accuracy was as good then in their numbers as ours is now.

Lee,

Don’t understand your statement re the quality of data. Are you saying that America’s homicide victimisation rate (for example) peaked in 1980 because their data collection was poor? Now it’s much lower because it their statistical methodology is better, not because the rate actually is lower?

I’ve noticed that when the facts agree with you guys, then it’s called “evidence-based policy” and it’s as decent and true as babies at Sunday school, but when the facts don’t agree they become mysteriously inadmissible or irrelevant.

“The public don’t have a right to make that decision, nor do politicians. Politicians seem to (in the large part) realise this, the public (in the large part) do not.”

Translation: No one has the right to make that decision, except me, and I say no.

@vimothy #233:

<blockquote.But they must do right—if they have the same approach to capital punishment, then obviously their societies are the same in all other ways.

This comment demonstrates quite how far you have misunderstood my argument.

I asked you

I oppose capital punishment on principle; yet even on your own terms – deterrence and retribution – does hanging really work?

To which your response was:

And I mean, it’s not like crime has increased at all since we abolished capital punishment, amirite?

My #81 was:

.While it isn’t central to my argument, perhaps you could explain why, if capital punishment deters homicide, the USA, which has capital punishment, has much higher homicide rates than Western European democracies, which do not? I’m aware of the UK record since abolition, but there are many confounding factors in that record.

The UK of the 1960s was very different from the UK of 2011; I have lived through most of both. The US of the 1960s and 1970s was very different from the US of 2011. There is an argument to be made that the US of 2011 is closer to UK of 2011 than either is to UK or US of the 1960s.

Since abolition of the death penalty, the UK crime rate has risen. So have, for example, drug-addiction rates.

Since the ending of the short suspension of the death penalty in the US (1972-1976), murder rates specifically have fallen dramatically, albeit not monotonically; the highest murder rate since 1960 century occurred in 1980, and it got close to that again in 1991. The murder rate during the years leading up to suspension, however, was rising. After suspension, it fell slightly, then rose again to the 1980 high.

Rape, on the other hand, for which capital punishment was outlawed in the 1970s, shows no obvious trend since abolition.

(http://www.disastercenter.com/crime/uscrime.htm)

You presumably realise that the US does not have a single legal system. Around 1/3rd of states have no death penalty; and one state (Texas) carries out the majority of all executions.

Interestingly (and the reasons for his might be interesting to establish), the murder rate in death penalty states has been lower in the aggregate than in death penalty states every year since 1990, and by very substantial margins – see:
http://www.deathpenaltyinfo.org/deterrence-states-without-death-penalty-have-had-consistently-lower-murder-rates

It is you that has been simplistic in your argument on this point. My view is that pointing to rises in murder rates since abolition in isolation is pretty meaningless. Societies change, and crime rates of all kinds track those changes. It might be possible to analyse the data and tease out some deterrent effect to the availability of capital punishment; but that same analsysis may show that societies that are so different that they don’t have capital punishment don’t give rise to the same crime-rates, and hence end up with lower murder rates than different societies that do have capital punishment. The data from the US since 1990 suggests that that might be the case. The Northeastern US, many of whose states have no death penalty statute, has had only 4 executions since 1976, and has consistently had lower murder rates than the rest of the country.

These statistical arguments are the basic problem. They are the reason that us who follow the Austrian School in economics argue that econometrics are worthless. Society, and the economy, are dynamical systems (“chaotic”). You can show that A happened, and B happened, but you can never prove whether A caused B. What instead it comes down to is that people divide into camps depending on whether they find a causal link plausible which in turn is dependent largely on their own belief systems.

For instance, if you believe in demand side economics, you will find it plausible that an increase in output was caused by stimulus spending; if you’re a supply sider you will find that implausible.

What causes murders to occur is due to a hugely complex set of variables that cannot be objectively identified, let alone analysed. We can see some basic principles; for instance that the economically and socially disadvantaged are more likely to commit murders, because their socio-economic status incentivises criminality. Members of the Bullingdon Club have no incentive to be burglars and muggers, basically. But there are numerous other factors. It’s just too complex to extract meaningful lessons from the data.

“Translation: No one has the right to make that decision, except me, and I say no.”

Not at all, I don’t get to make the decision either…no-one does, because rights transcend decisions made by individuals or groups of individuals

“Don’t understand your statement re the quality of data.”

Methodologies have changed over time, and on top of that (as I said, even if they were comparable in accuracy) there is no way you can link the data to the reasoning you’re suggesting. It’s pie in the sky fantasy, inappropriate use of statistics.

Robin,

I apologise if I misread your argument, but it seemed as though you were comparing European states to the US and concluding that, because European states have lower crime or homicide rates and no death penalty, the death penalty must (statistically) cause higher crime rates, which is an elementary mistake in applied research.

Unless the crime rate and the decision to execute criminals are probabilistically independent events (for instance, if you’ve randomly assigned the death penalty), then the observed differences in average outcome will represent an average treatment effect and a selection bias effect. This is also the problem you have with a simple comparison of States.

Imagine rather than states that our population was a group of people. Some of these people go to hospital. If we were to compare the average differences in health between the people who have been to hospital and those who do not, we may well observe that those who went to hospital have worse health, and so conclude that hospital does not help or even that it causes worse health. This would be because of the selection problem. What we actually want to see is the difference in average outcome, given the treatment.

We can’t do that; and, assuming that no one can be bothered to sit down with EViews or whatever and estimate some kind of model, my argument is that it’s better to look at the heath of an individual before and after hospitalisation than a simple comparison of population means.

In the UK, we progressively liberalised the whole system and crime rates increased 50-fold. This may be simply an extreme event, but I doubt it. In the US, they liberalised the system, and crime increased, and then they stepped back a bit, and crime decreased. Again, from my perspective, this is not surprising. At the margin, if you lock up more criminals, there will be less crime.

@241 – Yes, but you can’t claim that as deterrence. It’s incapacitation.

And, bluntly, you’d probably get better results (with THAT many people in jail) by pre-emptively jailing certain risk-groups of people. Sound totalitarian? Well, yes, and of course very few are going to support it.

You can’t look at results in the US and simply apply them to the UK, and I’ve only see some of the far-right claim that’s a credible thing to do. The base crime rates and underlying societal factors are just too different.

Long-term trends in homicide

http://marginalrevolution.com/marginalrevolution/2011/06/long-term-trend-in-homicide-rates.html

Long-term historical trends of violent crime in Europe. What is remarkable is how violent the past was.

http://www2.warwick.ac.uk/fac/arts/history/postgraduate/taughtma/mamodules/hi971/topics/interpersonal/long-term-historical-trends-of-violent-crime.pdf

@vimothy #241:

In the US, they liberalised the system, and crime increased, and then they stepped back a bit, and crime decreased.

Except that isn’t what the figures show; certainly not unambiguously. Rape rates have stayed virtually unchanged despite abolition of capital punishment. The highest US murder rate since 1960 occurred 4 years after reinstatement of the death penalty for murder, and the closest approach to those figures in that period was 10 years later.

On the other hand, since 1990 at least, US murder rates started lower and have fallen faster in states without the death penalty than with it. This suggests that there’s another factor at work, and indeed it is possible that the factors that lead to the existence of the death penalty actually work against reductions in murder rates.

[235] “You’re conflating the emotional state of people with the direct impact of individual actions in a court room, and it’s immature to do so” – while to me it sounds like you are in denial about the nature, or extent of a problem, a not insignificant problem that historically has been rather swept under the carpet.

We do know that there is little research on family’s experience of the judicial process (unsurprisingly) – perhaps because like posters on this thread observers already have already developed pat answers as to what families can expect in court, as well as tacit acceptance than any secondary trauma (inflicted by the trial itself) is just tough titty – needless to say the luxury of such a position is more easily maintained until somebody you know is directly affected.

We also know that when such questions have been belatedly asked (about these experiences) the findings are hardly complimentary. Up thread we are told that self reporting is unreliable, although to my ears this sounded more like I’m not really listening?

You describe it as ‘conflation’ when the competing rights of the accused and victim are put forward as a starting point to consider some of these dilemmas.

Some are very keen for ANY question to be permissible in court – so what about the accused’s previous form – for example, let’s suppose somebody had already been convicted of murder – is it OK to ask questions about their previous offending especially if the modus operandi is similar to the case being heard?

Even if somebody has not been convicted, wouldn’t juries want to know about previous accusations, or attempted prosecutions?

Either way I find it very worrying that a serious person collects data from over 400 cases and concludes that we are not even civilised in the way we treat people when they are experiencing just about the worst thing that will ever happen to them.

Sorry if that sounds “immature”.

@128: Libertarianism surely permits the restriction of rights if a citizen proves dangerous to society (say, freedom of movement=going to prison)? You cannot have anything like the penal system we have now if inalienable rights are truly ‘inalienable’. Otherwise it would mean libertarianism is logically contradictory and that which is logically contradictory is logically false.

So in the US, there was a secular decline in homicide rates, which bottomed out in 1960, and then started rising again. Why? No reason, it just happened. Then, in 1980, it peaked, and started to decline. Why? No reason; that just happened too.

There is a significant trope here that it is important to address. When I argue with liberals about the negative effect that their policies have on society, I’ve noticed that a common defence is the claim that the variable in question is subject to exogenous forces, basically mystical and unknowable in nature, and that as a result the outcome is invariant to policy in any case. For example, if crime increases, it is for the tautological reason that “society has changed”. The best policy is therefore the liberal one of not attempting to solve the problem directly and in accordance with the practices that historical experience has bequeathed to us, but rather to chuck increasing amounts of money at it. That is never solved merely reflects the fact that it is unsolvable. Instead we attempt manage it, which we achieve by bribing the problem into being less of a problem. Maybe if we make prison sentences more lenient, criminals will be less inclined to commit crime, so thinking goes. Maybe if we were nicer to criminals, criminals would be nicer to us—in other words, we have a bad case of society-wide Stockholm syndrome.

Another interesting feature of the debate is inconsistency. When we want to argue that America’s crime rates are high, then the American justice system could not be more draconian. However, when it appears that rates are actually low relative to some standard, magically the American justice system transforms itself into a much more measured beast. If crime rates are high, this proves that the American approach does not work; but the logic is asymmetrical—if crime rates are low, this must be for some other reason, and nothing to do with any American approach to anything.

@vimothy #247:

So in the US, there was a secular decline in homicide rates, which bottomed out in 1960, and then started rising again. Why? No reason, it just happened. Then, in 1980, it peaked, and started to decline. Why? No reason; that just happened too.

Have fun with your strawman (and do try to get the figures straight – 1990 was higher than any year before or after 1980).

When you work out that the figures you seek to rely upon are influenced by more than one variable – as is clear from the comparative figures between US states with and without the death penalty, and the rape rate in the US after prohibition of the death penalty – you might have learnt something.

In the meantime:

Another interesting feature of the debate is inconsistency. When we want to argue that America’s crime rates are high, then the American justice system could not be more draconian. However, when it appears that rates are actually low relative to some standard, magically the American justice system transforms itself into a much more measured beast. If crime rates are high, this proves that the American approach does not work; but the logic is asymmetrical—if crime rates are low, this must be for some other reason, and nothing to do with any American approach to anything.

When US murder rates do get to the point where we can describe them as low by comparison with the UK – which will be some time since even including the non-death penalty states they are 4 times ours now (and the non-death penalty states have a rate 3 times ours) you might have a point to address.

@vimothy;

One other point that seems to have been lost: UK murder rates are also dropping, and have beeen since the 1990s.

Robin,

…do try to get the figures straight – 1990 was higher than any year before or after 1980

Richard W’s graph is not actually that hard to read:

marginalrevolution.com/wp-content/uploads/2011/05/Violence-Stylized-2.png.

I’m not sure I understand your comment though. It is not possible to on the graph distinguish the 1980 peak from the lower 1990/early ’90s peak; however:

1, America’s homicide rate was higher than it was in 1990 for most of its history. To the extent that there is a stationary point at 1990 (or 1991 or wherever) it is merely a local maximum.

2, The homicide rate in 1980 was 10.2 and in 1990 it was 9.4 (9.8 in 1991). Thus the 1980 rate represents a high point for the whole 20th century, as far as I can tell.

“In the meantime”, the rest of us in the UK will carry on trying to figure out what caused our own crime rate to increase by about 4700% over the last century. Probably nothing to do with policy though–after all, “societies change”.

I do not know for sure whether it is a causal factor in violent crime and murder rates. However, I would venture a guess that the level of violent crime in a society is largely driven by that societies demographics. Particularly the amount of young males in the likely age group who indulge in violent crime. Crime has fallen over the last twenty years all over Western Europe and North America as the fertility rate has declined. I am sure there is more to it than that, but it is probably a large factor.

Robin,

I’m not arguing that the homicide rate is a simple function of the death penalty, by the way–that is also a straw man. I’m arguing that if you execute murderers there are less murderers about to murder, and that murder is more costly and hence less attractive to murderers. So that, at the margin, if you have capital punishment you will have a lower homicide rate–not a lower homicide rate than territories without the death penalty, just a lower homicide rate.

It’s a very basic principle of human nature that people respond to incentives. If you make it easier to buy houses, people will buy more houses. If you make it more expensive to go to university, fewer people will go to university. If it is fatal to walk in front of buses, people will try to avoid doing so. If the stove burns, you don’t touch it. Thus, if you credibly commit to executing murderers, the rational murderers will find some other way to occupy their time, and the irrational murderers are precisely the kind of person the gallows was designed to hold. In the past, people understood this. Only today is denying the obvious some kind of virtue.

I’m also aware that in the UK indictable offences inc. homicide started to fall in the 1990s. But I’m not sure that this is anything to be proud of, given the huge increase over the last 100 years. It looks like slightly less of a massive failure, but a massive failure nonetheless.

“I’m not arguing that the homicide rate is a simple function of the death penalty, by the way–that is also a straw man. I’m arguing that if you execute murderers there are less murderers about to murder, and that murder is more costly and hence less attractive to murderers. ”

I’ve no special regard for the welfare of those justly convicted of murder but, on the evidence, our judicial system is not sufficiently robust to have prevented an alarming number of miscarriages of justice:
http://www.innocent.org.uk/

@vimothy #252:

I’m only going to comment shortly for now.

I am using the figures I linked to.

Stop with the strawmen. Address the point; it is the US states with no death penalty and more liberal penal policies that have lower, and faster-declining, homicide rates than those with the death penalty and less-liberal penal policies; albneit stillhigher than UK murder rates by a factor of 3. Your argument seems to imply that were there no death penalty, murder rates would be higher still in, say, Texas.

Has it occured to you that it is the less macho societies leading to relatively more enlightened penal policies in, say the Northeastern states, that are the reason for the lower murder rate; or, to put it another way, that societies that are barbaric enough to retain such policies as the death penalty are going for that very reason to be societies with high murder rates? The answer then is to liberalise, not to murder to prevent homicide.

@vimothy #252:

Sorry – while I still can’t give a full response, i can’t let this go:

the irrational murderers are precisely the kind of person the gallows was designed to hold

Errmmm; no. Insanity has always been a defence to murder at common law.

A bit late in the day but there is one situation in which I would agree with capital punishment.

If a convicted murderer requested execution rather than spend 20 years in a cell (with Levi Bellfield as a neighbour) then a quick end might be the kinder of the two punishments?

I think I agree with Laura’s comment. Admittedly people on the right are more likely to be in favour of reactionary reforms to the legal system, as it goes hand in hand with beliefs that society collapses if its approaches are too “soft”. BUT this isn’t always true. Not everybody with right-wing views is blind to the huge ethical problems, not to mention utter pointlessness, of taking a life as a symbolic act. An article like this cannot help, as it may find nods of agreement (mine included), but it has to be more diplomatic if it wants to actually win people over.