Subject: Re: Help us Dan Dorry, Esq.
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Date: Mon, 27 Feb 1995 06:23:34 -0500
From: MCBURNEY@HULAW1.HARVARD.EDU
Reply-To: transnat@agora.stm.it
Subject: Help us Dan Dorry, Esq.
To: transnat.list@agora.stm.it
To Big Dan the Lawyer Man:
There, there McBurney. . . no need for resentment. You HLS'ers will
be Esqs soon . . .
Now that you are the self-proclaimed savior of this list ("this
list is
dead without me"), and perhaps are feeling a little put upon by
having to
shoulder such a burden all by yourself (though, no doubt, as an
Esq., you
are more than capable of doing so), we figured we should try to
help
lighten your load just a bit.
Not a savior, more like a rescuer. Savior suggests redemption, and
I'm not sure anything can REDEEM this list. And thanks for trying
to lighten the load. Gosh, you guys are swell.
It amuses some of us that you are claiming the ability to "prove"
what is essentially a moral debate,
Remember "prove" can mean different things, depending on what kind
of standard of proof or epistemological framework you're employing.
I choose to employ a coherence theory of truth, which, I think, is
a reasonable alternative to the more extreme relativistic or
absolutist theories that abound. As fledgling law students, you'll
probably have a more positivistic approach to truth and proof, but
that will all come out in the wash. Anyway, when I say prove, I
mean simply this: I will show that my arguments for the DP are more
persuasive than those against. That should be adequate proof for
any reasonable person. Also, your comment suggests that you do not
believe that ANY moral debate is PROVABLE. Would that be the case
given my definition? If I seek to prove to you that it is wrong to
kill innocent people, would you dismiss my attempts as nothing more
than a strongly voiced opinion? That seems to be the consequence of
such a theory. If that is true, then how can society function in an
organized, peaceful fashion? Seems unlikely that it could. And yet,
by and large, we all play by the rules (and we all think it is
wrong to kill innocent people). Hmmm....an unproved and unprovable
maxim that we nonetheless live and die by...
but we decided that if you have the
power to give life to this list, perhaps you are in fact a
miracle-worker,
or at least a really good lawyer. As such, maybe you can help us
with a
debate we have been having on our own, here on the side, while we
watch
you vanquish your small-minded foes.
The issue as we see it can be parsed into two questions:
1) What deters?
2) Whom does it deter?
Answering Question 1 is straightforward. The truth is, as you have
so
eloquently put it in your inimitable way, the prospect of being
killed
does deter many if not most people. In particular, as the
certainty
of death increases, the deterrence effect grows correspondingly.
That's
why fewer people are flying USAir today than, say, two years ago.
;)
Indeed, if we knew that by boarding a USAir flight today we would
certainly die, chances are that very few people would fly on that
airline.
Some might, just for the thrill of it, but we wouldn't call them
rational
people. But of course we can't hope to deter the irrational folk.
And that's precisely why a DP bill like the one proposed by Pataki
in NY is such a farce. It attempts to capitalize murder where: the
victim was tortured before being murdered, the perp is a serial
killer, etc. Presumably serial killers and torturers aren't playing
with 52. This bill is useless, and will do nothing to deter violent
crime. Hence, in 5 or 10 yrs, everyone will ask, what has been the
effect of the DP on crime in NY, and the answer will be nil. But
this is not an argument against the DP, but the way it is
implemented. Do not seek to deter the insane, but the sane. And
this segways into your next point (of confusion).
That's where we get confused, Dan, and seek your wise counsel
(presumably
you won't bill us for it, even though you are an Esq.). Last time
we
checked, murderers, hijackers, arsonists, et al. were not the group
most
likely to be named "rational". While they might not all be willing
to
hop on board our fanciful USAir flight, it is clear that something
"larger" than the law was motivating them. Why is it that these
people
-- precisely the ones we hope to deter -- are going to be moved to
rationality (i.e., deterred) simply because _if_ (and Dan, that is
a
mighty big "if", so big that it may well be the undoing of your
fine
argument) they are apprehended, they _will_ be executed?
1. Let's get rid of the big if first. Apprehension rates of
criminals, when considered in isolation, is completely irrelevant
to the DP's deterrent effects. The argument goes like this: EVEN IF
only a small percentage of violent felons are apprehended (which is
not the case), this in no way undermines the potential efficacy of
the DP BECAUSE the deterrence is a function BOTH of apprehension
rates and execution rates of convicted felons. So if the
apprehension rate is only 40% (among those committing capital
crimes, mind you), and the execution rate of those apprehended is
100% (ah, to dream!) then the detterrent effect would be strong
because those who would commit violent crimes would be aware that,
once caught, it's certain death. Further, the 40% chance of
apprehension would be magnified in the criminals eyes by the threat
of certain death upon apprehension. The deterrent effect would
increase the higher the apprehension/execution rates.
2. As for murderers, hijackers, arsonists, etc, being motivated by
irrational impulses, that is not entirely true. So much for the
Anti-Obscurantists! Yes, SOME violent felons commit crimes out of
insanity or desperation, and these persons are not going to be
deterred. But the larger (urban) crime picture is this: young
people (from 17 to 25) at some point make a completely rational
decision to turn to crime for personal gain ($$$, prestige,
power)...
Example. In a setting in which selling marijuana on a casual basis
can provide a young person with a six figure income, and the
"respect" and "admiration" of his peers (including the opposite
sex), there seems little debate that it is a rational decision.
Further, if the drug dealer is smart, and is never caught carrying
more than 3/4 of an ounce at a time, then he is NEVER looking at a
punishment of more than 15 days in jail and a $250 fine (in NY)!
It's getting more rational all the time! But dealing is nonetheless
a dirty business, and young kids are always looking to break into
the business. So to DETER others from invading their turf,
fledgling drug dealers carry guns to protect their turf, and
themselves. (And its a status symbol in the inner city...)
Hmmm...ironic isnt it? That the only ones who are aware of the
deterrent effects of death are the criminals and not the
legislators? Do I have to continue with the story?
The point is that armed robbery, burglary, rape, drug dealing, etc
are vicious crimes committed for personal gain with harmful intent
that often result in an innocent person's death. Murderers kill for
money, hijackers hijack for ransom or political leverage (power),
arsonists burn for insurance money. McBurney, people commit crimes
for dinero, for power. Not everyone that murders is an unstable,
insecure husband who comes home to find his wife in bed with
another man! Some are actually (dare I say it?) EVIL.
Help us Dan, like no one else can.
members of the Anti-Obscurantists Society at HLS
I will try, oh rich white Harvard Law Students blinded by privelege
and completely manipulated and brainwashed by post-modern bourgeois
liberal hegemony!
Daniel A. Dorry, Esq.
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