Debating the death penalty

With the left (and some conservatives) now intently focused on vastly reducing the prison population and curbing the police, the attention of the “civil rights” movement has shifted away from the death penalty. African-Americans encounter the police and our prisons every day; executions are rare.

But more thoughtful, less agenda-driven observers remain focused on the death penalty. George Will argued against it last week. The Washington Post’s editors do so today.

I find it difficult to debate the death penalty. For me, the issue comes down to whether one’s sensibilities (ethical or aesthetic, take your pick) are more offended by the state taking a life or by a cold-blooded murderer (let’s say Dzhokhar Tsarnaev, to take an extreme case) not having his life taken. These days, the latter scenario bothers me more, but I can’t refute those who are more bothered by the former.

There are, to be sure, empirical issues that can be debated. They include the extent to which today’s sparing use of the death penalty deters murderers and the degree of the risk that the sparingly applied death penalty will take the life of anyone later determined to be innocent. I don’t find these issues dispositive, but others might well.

Bill Otis has no difficulty debating the death penalty; in my estimation, he does it brilliantly. His response to George Will is an excellent example. Here is most of Bill’s argument:

Will, often and astutely a fan of history, tells us that, by imposing the death penalty, democratic government is asserting “majesty” and “infallibility.” It is asserting neither.

George Washington — known for, among many other things, turning down majesty — not only supported but used capital punishment, as did Lincoln and FDR. It remains on the books today, as it has for all but four years of our distinctly non-regal history, not because Americans think the government is majestic, but because the people themselves overwhelmingly support it. According to Gallup, 60% or more of the public has supported the death penalty for 40 straight years.

And no one takes the government to be infallible. No one thought it infallible (merely plainly in the right) when the government declared wars, including WWII, that killed exponentially more people, and exponentially more innocent people, than the death penalty ever has. We fought, knowing in advance that thousands would die — many of them adventitiously or from sheer stupidity or mistake — because the nation judged it worth the candle.

That is the test Will misses. The question is not whether X government program is infallible. The question is whether, knowing that it (and all other fallibility) cannot be escaped, the risk of error is so small and the reward to justice so large (as with Tsarnaev and McVeigh) that the benefits are worth the risks.

Much of this answers Will’s next objection — that if we execute an innocent man, the error is irretrievable. That is true, of course, but if (for example) we continue to travel by train, innocent people are certain to die, as they did two weeks ago, and just as irretrievably.

No one suggests, however, that we give up train travel, although it unlike justice is merely a convenience. What they suggest is that we do what we can to make it safer. They propose this although the improvements are likely to cost a lot of money and still won’t make it infallibly safe.. . .

[I]n public policy, everything is a matter of balance — balancing costs, benefits, and trade-off’s. Surprisingly, Will seems to miss this entirely, and thus seems to take the possibility of executing an innocent person as an absolute barrier to capital punishment, rather than merely an extremely serious cost.

Finally, Will points to not a single execution of an innocent person in the last fifty years. That’s because, so far as any neutral authority had been able to determine with any degree of assurance, there has been none. That does not make the risk of executing an innocent disappear, but it does make it vanishingly small.

The deterrent value of the death penalty is much debated; the majority of (but not all) studies say that it does have deterrent value, although (as Will correctly points out) not as much as it would if imposed more frequently.

But to say that it would have more deterrent value if imposed more often is an odd argument that it should not be imposed at all. It also simply walks past the two more frequently cited reasons in its favor: That, for some especially grotesque murders, it’s the only punishment that fits the crime; and that it’s the only certain means of incapacitating the killer.

Will does not discuss, for example, what we are to do with a psychopath who kills once, is given a life term in prison, then kills a guard in an escape attempt (or a prisoner from a rival gang, or some weaker inmate who refuses sexual favors). Just as there is no infallible judicial process, there is no infallible prison security. What is the just punishment in such a case? Loss of canteen privileges?

In my opinion, the death penalty is the just punishment in these and certain other cases.

Secretary Carter praises the boss

We doubt that President Obama is a great leader in the defense of the national security of the United States, and the evidence supporting our doubt is abundant. In the Middle East, we see Iran asserting its power from Iraq and Yemen to Syria and Lebanon. We see ISIS on the march. We see al Qaeda and its affiliates expanding their forces. Elsewhere in the world, we see China and Russia presenting threats to our friends in the area of each. All these developments pose serious national security threats to the United States, threats whose seriousness continues to increase.

Adding to the evidence is Obama’s recent commencement speech to the graduates of the Coast Guard Academy. In the address Obama identified “climate change” (f/k/a “global warming”) as the great national security threat of our time. Obama briefly mentioned the threat of terrorism. He had not come to talk about terrorism or any other of the pressing threats that confront us around the world. The climate, it is a changin’.

Secretary of Defense Ashton Carter addressed the doubters in his Memorial Day remarks at Arlington Cemetery. Carter said “troops of such caliber demand great leaders, and there’s no doubt they have one in our commander in chief.”

“I see that every day,” he added. “He knows well the challenges we must face, the obligations we must meet, and the opportunities we must seize in order to keep our nation safe and to make a better world for our children. And I see that he cares deeply about the safety, welfare, and dignity of our men and women in uniform and their families.”

Secretary Carter is a perceptive man. He must realize how widely shared our doubts are among the troops and the resulting need for reassurance. Reassurance, however, usually comes from deeds, not words, especially not words from an appointee in praise of his own boss. That the words need to be said should be a cause of dismay to, if not introspection by, Obama. That they won’t be is another story.

Via Bridget Johnson/PJ Media.

Let’s call the whole thing off

The starting point of statutory construction is the language of the statute itself. If the words of a statute are clear, they are to be construed according to their plain meaning. See generally Yule Kim, Statutory Interpretation: General Principles and Recent Trends (Congressional Research Service, 2008). If the words of a statue are ambiguous, a court may resort to legislative history and other devices to construe it. The Supreme Court has demonstrated that it can do whatever it wants and has said just about as much on occasion in the past.

The case of King v. Burwell pending before the Supreme Court raises a question of statutory construction regarding the phrase “established by the state.” The IRS has disregarded the words in promulgating the regulation making Obamacare subsidies available in exchanges established by the federal government for states that have declined to establish them as well as states that have established them under duly enacted state law. I wrote about the case briefly in “Triumph of the leftist will.” Documents filed in the case have been compiled by the Competitive Enterprise Institute here.

New York Times reporter Robert Pear now turns to the question before the Court in his New York Times story “Four words that imperil health care law were all a mistake, writers now say.” In his first sentence Pear begins with the proposition that the words “established by the state” are ambiguous, which rigs the game. In a sense, under traditional rules of statutory construction, Pear begs the question, assuming what is to proved. What part of “state” don’t you understand?

Pear nevertheless creates ambiguity by treating various Senators as authors of the 2,000 page bill and therefore authorities on its meaning. The first to whom he turns is former Maine Senator Olympia Snowe, who voted against the Obamacare bill enacted by Congress. I don’t think there is any theory of statutory construction that would make Snowe an authority under these circumstances, but that doesn’t stop Pear. Pear quotes Snow: “I don’t ever recall any distinction between federal and state exchanges in terms of the availability of subsidies.”

Snowe had more such helpful commentary for Pear: “It was never part of our conversations at any point.” A reasonable person might conclude at this point that there is no illumination to be shed by Snowe on the question, but neither Snowe nor Pear thinks so. Snowe asked a rhetorical question: “Why would we have wanted to deny people subsidies? It was not their fault if their state did not set up an exchange.” Well, Senator Snowe, you voted against the bill. Why did you want to deny the whole country the benefits of Obamacare?

Pear doesn’t go there. Rather, he quotes Snowe further. The four words, she said, were perhaps “inadvertent language,” adding, “I don’t know how else to explain it.”

Snowe only provides the comic opening to Pear’s long, nervous article. He has much more. One resource to whom Pear does not turn, however, is Jonathan Gruber. Gruber is conspicuous by his absence.

Congress said exchanges “established by the state.” Pear’s sources say “drafting error” or “oversight” or “accident.” I say let’s call the whole thing off. The Supreme Court will have its say before the end of its current term on June 30.

Return to Stephanopoulos

George Stephanopoulos acted as an advocate for the Clintons and the Clinton Foundation when Peter Schweizer appeared to discuss his book Clinton Cash on This Week with the Democratic Operative. I noted Stephanopoulos’s absurd pose that Sunday in “For the Clinton defense.”

Subsequent reporting by the Washington Free Beacon’s Andrew Stiles dug out Stephanopoulos’s undisclosed contributions to the Clinton Foundation. Asked for comment by Stiles when the story was ready to go, ABC News kept the Free Beacon hanging and leaked the story to Politico media reporter/blogger Dylan Byers, who ludicrously credited Stephanopoulos with disclosing the contributions. The episode showed Stephanopoulos at work doing damage control on his own behalf in the style of a campaign operative. He had plenty of experience doing it for Bill Clinton himself. I last wrote about this series of events in “Weasel words from a weasel.”

Former New York Times media reporter Brian Stelter has succeeded to Howard Kurtz’s seat as the host of CNN’s Reliable Sources media show. Stelter is a knowledgeable reporter and good at what he does.

This past Sunday Stelter invited Free Beacon editor Matt Continetti to review the Free Beacon’s role in breaking the Stephanopoulos/Clinton Foundation story. Stelter drew out the elements worthy of note and let Matt do the talking. This is an excellent interview (video below).

This outrage has come to rest in a state of repose conducive to Stephanopoulos continuing the charade at ABC News. ABC News has calculated the angles and has apparently decided to let it ride.

The mainstream media adjunct of the Democratic Party is not loosening its grip at ABC News or anywhere else among the mainstream media. It’s time for Stephanopoulos to go, if only to help them keep up the pretense that they are something other than what they are. ABC News, however, must not see it that way. I therefore appreciate the opportunity afforded by Stelter’s interview of Continetti to return to this illuminating story.

Behind Science Fraud, Chapter 2

We’ve been following the story of the apparently fraudulent article in Science about whether people will change their mind about gay marriage after a short conversation with a real live gay person (I guess watching Will & Grace and Modern Family reruns just doesn’t quite do the trick), as well as yesterday’s excellent op-ed in the NY Times about the pervasive problem of scientific journals and media credulity. Tomorrow’s New York Times extend the story with an excellent news feature, “Maligned Study on Gay Unions Is Shaking Trust.”

Here are the highlights:

The case has shaken not only the community of political scientists but also public trust in the way the scientific establishment vets new findings. It raises broad questions about the rigor of rules that guide a leading academic’s oversight of a graduate student’s research and of the peer review conducted of that research by Science. . .

Critics said the intense competition by graduate students to be published in prestigious journals, weak oversight by academic advisers and the rush by journals to publish studies that will attract attention too often led to sloppy and even unethical research methods.

I’m sure this never happens in climate science. . .  Anyway, to continue:

“You don’t get a faculty position at Princeton by publishing something in the Journal Nobody-Ever-Heard-Of,” Dr. Oransky said. Is being lead author on a big study published in Science “enough to get a position in a prestigious university?” he asked, then answered: “They don’t care how well you taught. They don’t care about your peer reviews. They don’t care about your collegiality. They care about how many papers you publish in major journals.”

But since the “major journals” are so often captured by an “in-group” with a narrow ideology or favoritism toward certain kinds of methodology, maybe this is one of the things wrong with universities today.

Kudos to the NY Times for excellent reporting.

Hillary Clinton, asleep at the switch

John has done a great job analyzing Hillary Clinton’s Benghazi emails. His posts are here and here. I urge you to read both of them.

Here’s an additional item that caught my eye. On September 15, 2012 — just four days after the Benghazi attacks — Monica Hanley, a Clinton aide, sent an email to Hillary at 9:17 a.m. telling her that senior White House official Dan Pfeiffer “has some sensitive items that he would like to personally show you when he arrives.”

At 10:43 — almost an hour and a half later — Clinton responded that she “just woke up so i missed Dan. Could he come back after finish my calls?”

Hillary Clinton comes across at times as a bit sluggish, especially compared to young potential Republican opponents like Marco Rubio, who has hammered home the point that Clinton represents “yesterday.” Sleeping until almost 11:00 a.m., and thereby missing a briefing (apparently on Benghazi), reinforces this perception.

During the 2008 campaign, Clinton attacked Barack Obama’s capacity to respond wisely to a 3:00 a.m. emergency call. In 2016, opponents might question whether Hillary will be able to rouse herself merely to answer important calls made at a much more reasonable time of day.

“But spare your country’s flag”

The replica of Barbara Fritchie’s house in Frederick, Maryland is just 45 minutes from mine. Yet I had never visited it until this weekend. If you’re in the area, it’s worth the trip.

Fritchie’s story is well known, I think, to anyone who attended school in my era. I suspect, however, that students of more recent vintage know nothing about it. Stories of patriotism are so passe.

In 1862, Confederate troops marching through Frederick passed the house of 95 year-old Barbara Fritchie. The widow proudly displayed her American flag from an upstairs window (or was it her doorway?). A rebel soldier fired at her flag (or did he just threaten to?).

In response, Fritchie (or was it her much younger neighbor Mary Quantrell?) shouted at the troops. “Shoot if you must this old gray head, but spare your country’s flag,” is the line with which she is credited. Whereupon the rebel commander (was it Stonewall Jackson?) is said to have threatened to kill anyone who harmed Fritchie or her flag.

A few months later, when he heard this story, the abolitionist poet John Greenleaf Whittier immortalized it in the poem “Barbara Fritchie.” He took advantage of poetic license. Just how much, we do not know.

The poem was taught to school children for at least a century, and not just in this country. British school children memorized it. Indeed, Winston Churchill recited it to President Roosevelt when the two visited the Fritchie house during World War II.

There is, actually, a British connection to Fritchie. Barbara’s husband John Fritchie was the son of a “Tory” — an American supporter of Great Britain during the Revolution. Frederick residents executed Fritchie’s father, who may or may not have engaged in some form of treachery.

Barbara’s family took pity on the son and hired him to help around the inn they ran. Eventually, Barbara, who was considerably older than John, married him.

Thus did the Fritchie name, once tarnished, become synonymous with gutsy American patriotism.