Thursday, November 08, 2007

Telecommunication immunity

I have to say that I can't find anything other than a completely cynical explanation for why congress would even consider granting immunity to the telephone companies who cooperated with the NSA on warrantless wiretaps (for which they are getting sued).

To me, it is really quite simple. What the cooperating companies did was either illegal or it wasn't. I'm not a lawyer so I don't know for sure which side of the line what they did fell on. But it doesn't matter. If it wasn't illegal, then they don't need immunity. If it was illegal, then they shouldn't be granted immunity.

I suppose there's also a middle ground, whereby what they did wasn't illegal but was a violation of their policies with their customers (i.e., not a criminal offense but a potential civil liability). Even here, if they promise something and then break that promise - even if its for good reasons - they should not have immunity; those reasons - if in fact "good" - can and should mitigate any penalties, but they shouldn't prevent any attempt to claim damage.

I'm unfortunately left to conclude that there are only cynical explanations for the attempt to grant immunity here. For shame.

Sunday, November 04, 2007

Death penalty

The death penalty has been in the news again lately, focused largely around the question of whether or not lethal injection is unconstitutionally "cruel and unusual" punishment.

On that particular question, I'd say "hardly." Folks get shots every day, it's not that big a deal. It has a bit of pain, sure, and I suppose there's certainly some mental anguish on the part of the condemned that the moment or two from injection to death are one's last. If either of these, though, meet the "cruel and unusual punishment" bar, then I can't imagine of any sort of punishment that doesn't.

Of course, this sideshow discussion ignores the larger moral/constitutional question of whether the death penalty itself meets that bar. I'd have to say that no, I don't think it does, when correctly applied. (Ahh, but there's the rub.) Mass murderer who has confessed? Seems perfectly reasonable. Parking violator? Seems a tad excessive. Good, so that's clean, but what about the 98.3% of all other criminals on death row fall somewhere in between those two extremes? That's, of course, a judgment call and what juries/judges are for.

Even though I have no a-priori opposition to the death penalty from a moral point of view, I've found that it's problematic from a pragmatic point of view. It all boils down to the basic question of whether or not the death penalty is doing what it is supposed to do, which is to (a) deter the most abhorrent crimes, (b) punish those who commit them, and (c) never ever punish an innocent person. The evidence for (b) is pretty strong; the evidence for (a) is weaker, and (c) is getting weaker every day. And given other claims that it's more expensive (due to appeals and so forth) to execute someone than to lock them up forever, the pragmatic qualities of the death penalty as applied today (a key qualifier!) look weaker.

A common argument in favor of the death penalty is that nobody has ever been proved to have been incorrectly executed. I think that's a bit of a false argument: once someone is dead, few people have the means or the standing to pursue post-mortem appeals, useful evidence is rare, and survivors generally want to move on.

But over the past few years, we have seen quite a few death-row inmates freed using DNA evidence, something that wasn't even available 20 years ago. If a measurable percentage of all current death-row inmates today are guilty-beyond-a-reasonable-doubt until DNA proves otherwise, then one must assume that similar convicts 20+ years ago would have been executed. And there's no reason to think that the percentage of convicts who are actually innocent would vary much over time. Therefore, the overwhelming likelihood is that we have, in fact, executed innocent people.

I think the proscription against executing the innocent is so strong that we should certainly halt any execution where there is a possibility that DNA or other new techniques have a possibility of proving innocence.

But other than beefing up safeguards to ensure that the guilty truly are guilty - not just beyond a reasonable doubt, but beyond a shadow of a doubt - I don't have a moral issue with the death penalty. If we can fix the system to where there is no risk of innocents being executed, then the decision of whether or not to keep the death penalty really should be dictated by whether it is cost effective (vs. life in prison) and actually achieves its deterrent goals.