Friday, November 09, 2007

Like it or Not, a Clear Case for Consideration of the Death Penalty

Medicine Hat murder accomplice just might fit the bill

A recent decision by the governing Conservative party to not attempt to intervene in the cases of Canadians sentenced to death in foreign countries has brought a good deal of predictable responses, most of them consisting of contempt and revulsion.

There's actually good reason for this. However, many of these individuals have taken it upon themselves to try to push the issue into a larger debate about the validity of the death penalty itself.

In this, they're wrong.

For proof, one needs look no further than the recent media blizzard surrounding the sentencing in regards to the murders of Marc and Debra Richardson, and their eight-year-old son.

On April 23, 2006, the Richardsons were stabbed to death by their 12-year-old daughter and by Jeremy Allan Steinke, then 23 years old, who had been romantically involved with her.

During the subsequent trial, a number of facts emerged. First off, it turned out that the girl herself was severely mentally ill, suffering from both conduct disorder and oppositional defiance disorder.

The girl's sentence, a meagre 4-year term what will be split between prison and a psychiatric hospital, followed by 4 1/2 years of supervised community living, certainly doesn't fit the bill. However, while it's very unlikely she'll successfully rehabilitate so long as she refuses to accept moral or criminal responsibility for her actions, her mental illness just may turn out to be treatable with the proper therapy and medication. The young age of the convicted, furthermore, obligates society to at least give her the opportunity.

But the defense for Steinke isn't nearly so clear.

While the girl's case contains varying mitigating factors, Steinke's case contains the polar opposite.

First off, not only is mr Steinke a murderer, but he's also a sex offender -- a 23-year-old (now 24) having sex with a 12-year-old. The revulsion associated with this act aside, Steinke reportedly joined with her in the murders she planned for two reasons: first, because it was the only way she would accept a marriage proposal from him, and secondly, because she had allegedly cut him off from sex.

Steinke, a grown man, was willing to engage in the act of murder in order to maintain his sexual relationship with someone who was (at the time) 11 years his junior.

Naturally, this is a very disconcerting fact, and for obvious reasons.

This is not actually to say that Steinke should be put to death. Far from it. However, in a case such as Steinke's, the state should have the death penalty on the books for consideration, even if it remains unused.

Those who steadfastly oppose the death penalty all too often forget that the justice system is actually meant to have four purposes, not merely two. Pierre Trudeau himself did this, when he abolished the death penalty, citing that it had dubious merits in terms of either rehabilitation or deterrence.

Aside from rehabilitation and deterrence, the justice system is also meant to embody two other purposes: punishment and, most importantly, the protection of society.

In terms of punishement, the death penalty should be considered inapplicable. For these particular purposes, the death penalty would appear to be too much like state-inflicted revenge. Revenge is not justice. The desire for revenge stems from an emotional response -- our legal system is supposed to be devoid of emotional response.

The protection of society, however, is a quite different matter altogether. In the case of Steinke, the crown should consider how likely Steinke is to reoffend in a similar manner. If they decide he is, the state is left with two options: imprison Steinke for the rest of his life (actually endangering his inmates), or execution.

Although those who oppose the death penalty most stringently may loathe to admit this, the death penalty is actually the more humane of the two options.

Now, all this being said, a reinstated death penalty would require a myriad of restrictions, many of which may result in its disuse altogether.

First off, should an accused's very life be at stake in criminal proceedings, the burden of evidence simply must be tantamount to this reality. Proof of guilt must be absolute, and objectively and scientifically unassailable.

Secondly, the death penalty would always need to remain the punishment of absolute last resort, and only be applied in cases where the accused is not only nearly certain to reoffend, but also certainly irredeemable. (Considering the political pressures that have shelved a psychological diagnostic test for determining whether or not an individual is psychopathic, this would be a doubly hard condition to meet).

Finally, were the death penalty reinstated in Canada, it would be of absolute necessity to guarantee at least one appeal, in order to be absolutely sure that the death penalty fits.

In otherwords, the criteria necessary to execute an individual should be so strict as to almost prevent its use. The death penalty isn't necessarily something that should ever actually be used. However, it's an option that should remain open to Canada's justice system for those cases in which the convicted is simply such an imminent threat to society that they are guaranteed to reoffend in a similar fashion.

This would pretty much restrict those elligible for the death penalty to serial murderers and unrepentant pedophiles. If anyone believes that serial murders and unrepentant pedophiles can safely be released back into general public, they seriously need to give their head a shake.

Whether or not Jeremy Allan Steinke would actually fit the necessary criteria is a matter for debate.

But Canadian courts should be able to consider the death penalty as an option for individuals like Steinke, even if it never actually gets used.


  1. Steinke, a grown man, was willing to engage in the act of murder in order to maintain his sexual relationship with someone who was (at the time) 11 years his junior.

    Out of curiosity, what is the age difference between them now? More? Less? If Steinke is aging slower, perhaps a life sentence would be more appropriate, since it would presumably last longer, no?

    On a serious note, as long as the accused in any murder trial denies his guilt, there will always be some doubt. And if he pleads guilty, effectively throwing himself on the mercy of the state, the state is obliged to provide that mercy, both in the interest establishing trust to encourage confessions from other wrongdoers and, more practically, of easing the burden on the court system.

    No matter how vile any one crime or criminal may be, his act will always fall on a continuum of evil - there will be those who commit acts worse, and those who commit those slightly less vile. The law's ability to adjust for these shades are not nearly as varied as the crimes they are called on to correct. Punishment, therefore, is effectively arbitrary and a system that is by its nature imperfect cannot have within its arsenal of arbitrary measures any that are absolute or irreversible.

  2. Matt, that's specious at best, sophistry at worst.

    Given that our legal system relies strongly on the principle of reasonable doubt, if your suggestion were to hold true, all an accused would need to do is deny his guilt in order to be acquitted.

    Fortunately for us, this is not the case.

    The fact of the matter is that anyone accused of a crime has a vested interest in denying their guilt (unless their guilt can be decisively proven, in which case their interest is best served by admitting guilt).

    But the fact of the matter is that guilt can be decisively proven, even in the absence of an admission by the accused. This can be done by way of various scientific methods, including DNA evidence.

    If there were any cause for reasonable doubt, Steinke couldn't be lawfully convicted at all, let alone be executed for it.

    Of course, if you were really employed in the legal system, as your blogger profile suggests, you would know this. It's pretty obvious that you actually aren't.

  3. Note, I did not say "reasonable" doubt, I said "some." As I've already got both a coffee and a cigarette on the go here, I'd appreciate it if you'd refrain from trying to put anything else in my mouth. As I said, the death penalty is an absolute measure in a field in which there can never be absolute certainty. It is therefore in a different category from other criminal cases. You yourself said the standard of proof should be extremely high - I simply believe that it is high enough to eliminate all cases. Incidently, you would be surprised how rarely, outside the realm of prime-time television, "scientific" evidence of provides the coup de grace in a criminal proceeding. In the absence of a finger pointing down from Heaven, with denial, there always remains doubt, however unreasonable or far-fetched it may be.

    None of which is relevant to my other point, namely the inherently arbitrary nature of all criminal punishment. It is inevitable that some murderers who commit acts even more vile than Steinke's will not receive the death penalty under your proposal. The end result of this is that some lives would be more fully "avenged" than others. For justice to be done - not just to convicts but also for their victims - its punishments must strive to be not only proportional to the crimes, but consistent, as far as is possible, in comparable circumstances. This is impossible, of course, but in striving for perfection our institutions must also recognize their imperfectibility and so stop short of irreversible acts.

    And lastly, I did not bring my supposed legal expertise into this argument, nor did I address your presumed lack of same. I claim no higher authority than my own arguments, nor do I fail to give your arguments their due weight on their merits, as opposed to on yours. If you want to argue about who is debating, as opposed to what they're saying, we can do that, but it's far less interesting and, as you noted previously, I have an unfair advantage.

  4. Matt, let me tell you what else is an absolute measure: murder.

    In extreme cases wherein a murderer is almost certain to reoffend if released, the state has one of two options: hold the murderer in prison indefinitely, or put them to death.

    Execution is not only less expensive (as fickle as this assertion my be), but also more humane. It also provides an additional measure of protection to the individual's fellow inmates.

    But the question regarding doubt and the burden of proof has always been thus: is the doubt reasonable? If there is any amount of reasonable doubt in the minds of the jurors or the judge, they are obligated to acquit the accused. It's a general principle of our legal system (in which you claim to work).

    What part of that don't you understand? You may need a new occupation.

    Last but not least, the state is never obligated to show mercy. That is not an entitlement to anyone who takes a life and is likely to reoffend.

    I think my opinion is starting to come across pretty clear: there are only two cases in which I think the death penalty should be considered applicable: serial murderers and predatory pedophiles who refuse treatment.

    Would the death penalty ever be used? I actually think it would be. Paul Bernardo, for example, would not have escaped this fate.

    However, I would note that if we were to begin using the death penalty to the extent that it's currently being used in the United States, there would be some very serious issues with that. Overuse becomes a definite moral hazard.

  5. Patrick, as I said before, you yourelf set the bar for the burden of proof in death penalty cases higher than just "reasonable doubt": "First off, should an accused's very life be at stake in criminal proceedings, the burden of evidence simply must be tantamount to this reality. Proof of guilt must be absolute, and objectively and scientifically unassailable." I agree with this fully, (even if you're now backing away from it) but believe that to meet such standards is effectively impossible and, in recognition of this, it is not only logical but morally imperative to have the capital option off the table.

    When I say that the state is "obligated" to show mercy, I meant in the context of death penalty cases only: plead guilty, show remorse, you don't get executed. You don't ever get out of prison either. If this were not a reliably available option, there would be no incentive for anyone to confess in a capital case, thus increasing the risk that some killers, through technical or procedural grounds, will go free.

    Your assertion that prisoners themselves would be somehow protected by capital punishment would make sense if all violent offenders were being executed but, as I noted above, even under your formulation that would not be the case. Not to mention killers like Bernardo, Olsen and Steinke, to put it delicately, were all motivated in their crimes by circumstances that are unlikely to reoccur in a maximum security prison.
    Debating that the "humanity" of capital punishment is superior to that of life imprisonment is a position that presupposes that prisons are at least somewhat inhumane. I've no doubt that's the case - and is in fact the point of the institution - but to argue for executions on the grounds of "humanity" is, I believe, the beginning of a slippery slope that leads to all sorts of dark places. I think accepting that our prisons are the most humane punishment option available to us is the safest course.

    And finally, if I may address this: "What part of that don't you understand? You may need a new occupation." Are you incapable of carrying on a debate without personal attacks? Whether I am a judge, a cop, a courtroom janitor or merely an undergrad who believes his student newspaper byline lends him credibility is utterly beside the point. This is not a discussion about points of law, but rather what we want the law to do and is therefore more of a morals and practicalities. I am treating your arguments seriously despite knowing your credentials, and have not once made reference to my own in order to bolster my position.

    I don't expect to convince you, just as you have not convinced me. But only one of us in this discussion is confident enough in their arguments to refrain from ad hominem attacks.

  6. I haven't backed away from anything, Matthew.

    The fact is that I can dismantle your "there will always be doubt" theorem very simply.

    Paul Bernardo and Karla Homolka took videos of themselves torturing their victims prior to killing them, which were then shown in court as evidence.

    Thus, the proof is logically and scientifically unassailable. In this particular case, the crown isn't even relying on the imperfect memories of eye witnesses. The crimes were recorded on video for posterity.

    Case closed.

    It doesn't take a genius to realize that in cases such as this, any doubt that would remain in the mind of anyone viewing the evidence would not be reasonable. In fact, there's no room for doubt at all.

    Now, I'm sure you and I will agree that there aren't many cases wherein someone will be stupid enough to videotape themselves raping someone before killing them. Yet, Bernado and Homolka did, and if we want absolute proof of guilt in order to execute the accused in this case, we have it.

    Similar to how serial murderers will take mementos from their victims, often in the form of body parts. Possession of those momentos, coupled with any other form of physical evidence, certainly constitutes absolute proof in the eyes of any reasonable person.

  7. I’m glad you brought up the Benardo/Homolka case, Patrick, as it illustrates a number of difficulties the death penalty introduces to the fair administration of justice. The videotapes did indeed show Benardo sexually assaulting two of the victims he was eventually convicted of killing. They did not show him killing them.

    The also showed Homolka actively participating in the crimes. But, as we all know, thanks to her plea agreement, she was sentenced separately, despite her culpability. This allowed Benardo to claim that she was the killer, and that, in any case, the deaths were accidental. Of course, it would be perverse to attach any credence to his claims of the deaths being unintentional, but his claims that Homolka was the active homicide are not impossible to believe.

    Which leaves us with the conundrum: is it justified for the state to kill the criminal it has at hand, when one that is possibly more culpable lives? I’d argue that it smacks of expediency. Society’s ultimate revenge must, in all cases, be scrupulously fair.

    Which brings me back to my second point, which I’ve repeated variations of in each of my comments, thus far unaddressed. I’ll try to clarify it here.

    We both agree that for death penalty cases the standard of proof be set considerably higher than “reasonable doubt.” However, I believe that this will lead, inevitably, to distortions in how people are punished.

    I’ve no doubt that eventually a case will come along where it will be as clear cut as you say – if I’ve learned nothing else from the blogosphere, it’s that there is no limit to human idiocy beyond which someone won’t be recording for posterity’s sake. For the purposes of this exercise, let’s pretend that this was the case here and Homolka and Benardo were tried and convicted together and duly executed.

    We are then left to look at other crimes. Let’s pretend, through the grace of god, a conviction is somehow obtained in the Air India case. Let’s also assume that Robert Picton is found guilty.

    In neither of the two latter cases is a slam-dunk smoking-gun piece of evidence likely to occur. In Picton’s case it seems to me his lawyers are doing an excellent job in casting doubt on the Crown’s evidence and in the Air India case, well, we know that sorry tale already.

    You would therefore have two cases where the crimes are equally vile and the body counts considerably higher. And yet neither would meet the standard for capital punishment. On a moral level, this disparity is unjust.

    On a political level, it would be unsustainable. Inevitably, families and lobby groups would point out that two white, suburban teenagers got their justice, but the prostitutes of Vancouver and the Air India victims did not get theirs. They would claim a double standard and, given what has emerged about how those investigations were carried out, they may well be right.

    The only way to ensure fair and consistent punishment across the board is either lower the burden of proof to “reasonable doubt” and risk some future Truscott or Marshall being killed by the state, or abolish it.

  8. So, we know that the victims were sexually assaulted before being killed. We have video tapes of Bernardo and Homolka doing this, and somehow you believe there's so much as a shred of doubt that they killed them?

    There is absolutely none.

    The Bernardo case is precisely as clear-cut as I've described. 100% and about the only way you could claim otherwise is if you're doing so out of political motivations.

    That being said, I think the Pickton case is slightly different. To date, very little of the evidence has been released to the public, but the bulk of the evidence against him seems to be that the bodies of the dead prostitutes were found on his property -- not necessarily in his direct possession, but merely on his property. As I understand it, it seems they were fed to his hogs (which will eat a human being, living or dead, given the opportunity).

    It doesn't take a genius to recognize the pens of a hog farmer who, by the estimation of both the prosecution and defense, isn't terribly bright, offers an opportunity for the disposal of a number of dead bodies.

    In the absence of any other form of conclusive and damning physical evidence, Pickton could never be sentenced to death, because in his particular case, the likelihood that someone else killed those prostitutes and dumped them in his hog pens is simply too credible. In this sense, Pickton may not be convictable at all.

    Truscott, on the other hand, was a teenager when he was accused and convicted. He shouldn't be considered eligible for the death penalty for obvious reasons.

    Finally and furthermore, simply too much time has elapsed between the Air India bombings and the current day to ever be entirely certain that we will apprehend the perpetrators. That amount of doubt would be suitable to exclude the death penalty.

    I'm sure you see the direction we're heading in: of all the case studies we've conducted thus far, we've found one case in which the death penalty should be considered applicable (and it is unquestionably so, whether you admit it or not). I don't think we're likely to find many more, at least not on this side of the 49th parallel.

    The fact remains that, in terms of dealing with extremely dangerous offenders who are almost certain to reoffend in the same manner, only a measure of punishment that is absolute can serve this purpose effectively.

    You can say what you will, but every child molester whom we release from prison who goes on to assault another child (recidivism being particularly high amongst this particular group due to the lack of remorse they feel in regards to their actions) is proof of how entirely wrong you are.

    It's rather unfortunate that you clearly don't have to ever face the victims of these particular individuals, because they aren't merely the victims of these particular individuals, they are also the victims of the orthodoxy that you and those who think like you have managed to impose upon the legal system.

    I would suggest this should give you pause to reconsider your views, but then again, I've always found there's very little reasoning with anyone who feels Paul Bernardo and Karla Homolka should have more right to live than their victims did.

  9. Patrick, if you read carefully, I never once said that I think there was a shred of evidence to say that Homolka and Benardo are anything less than guilty. Nor do I think they have "more of a right to life than their victims did."

    In fact, you have managed to misconstrue, misrepresent, and misunderstand every single argument I put forward, while rebutting none of it. I've no interest in finding yet another way of putting the exact same point in a way that you will finally understand it, because I suspect, given your return to ad hominem form, that it would be a wasted effort. Good day.

  10. Nonsense. Just because I won't follow your trail of rhetorical breadcrumbs to the preconcieved notions that you would prefer them to lead to doesn't mean that I'm ignoring or misconstruing your points.

    You brought up the issue of doubt. I charged you to demonstrate whether or not the doubt was reasonable. You claimed that we can never be absolutely certain as to the guilt of the accused. Then you admitted that, in the case of Paul Bernardo and Karla Homolka, we can be.

    In other words, I demolished your arguments, fair and square. If you don't like it, fair enough. You don't have to.

    What I find disappointing about your debating skills is that the most obvious rebuttal is the one you overlooked: the sense that while I feel that the death penalty should be reserved as a measure of absolute last resort, not everyone who supports the death penalty thinks the same way.

    There are certainly those who would have hung Steven Truscott up, despite the fact that he was a minor, and despite the fact that he eventually turned out to be innocent.

    I think that's a solid reason why, though we should consider the reinstatement of the death penalty, we may ultimately have to reject it. It may be simply too great a moral hazard, and I am more than willing to admit that.

  11. In other words, I demolished your arguments, fair and square.

    Is demolished really the word your looking for? I mean, a victory of this scale deserves something a little more, dramatic. Shattered my arguments? Carried the day in a victory that has earned your place in the Internet's Valhalla? Left me cowering and humiliated in my mother's basement?

    In any case, you did no such thing. I concede that yes, your evidentiary requirements could theoretically be met. Point to you. Congratulations.

    But my argument has, right from my first comment, been a two part one. You've never addressed the second part. I don't know why that is, but I will try to state my thesis as clearly and simply as I can.

    Determining punishment based on the relative strength of the evidence available rather than the nature of the crime will lead to distortions in the administration of justice. To wit: under your evidentiary requirements, Paul Benardo would be executed. If he had not videotaped himself, he would serve life in prison. Same crime, different punishments. I hold that the justice system cannot retain its moral authority if its punishments are needlessly arbitrary and that this is a very good reason to not adopt capital punishment.

    And I did not "overlook" the obvious rebuttal - there are a wide range of arguments for and against capital punishment that have been better stated elsewhere; we've no need to repeat them here. I limited myself to simply pointing out a flaw in your premise.

    As to you being "disappointed" in my debating skills, over the course of this discussion you have attacked my professional credibility, impugned my sincerity and my cast aspersions on my morals, all of which would earn you a position as waterboy on your college's debating team. I am not in the least bit concerned if I have impressed you.

    It is possible, Patrick, for men of good faith to disagree with each other. Your fundamental mistake was to assume that I came here to win an argument. My fundamental mistake was to think that you would be interested in a open and honest exchange of ideas.

  12. Nice try, Matthew, but you overlooked the most important tenet of my stated views vis a vis the death penalty: only those who are so dangerous that they will reoffend under the same guise (read: kill or molest again) should be considered eligible for the death penalty.

    The relative severity of the crime itself is insufficient in this regard. Good people can, given sufficient provokation, do very bad things. People who do very bad things can be rehabilitated. It's when they can't or won't be that we need to consider more absolute measures.

    Our legal system would actually have to undergo a significant paradigm shift in order to admit that there are some people who simply can't be rehabilitated, and can't be reformed. A diagnostic test for the classification of psychopaths has been developed, but essentially shelved because those in charge at the Justice Department don't want to admit that some people cannot be redeemed (a psychopath can't be).

    These are the people we need to be concerned about. There is really only one principle under which the death penalty makes logical sense, and that is the protection of society. In this regard, the death penalty very much is an absolute measure, but I think society deserves to enjoy a measure of absolute protection.

    On that note, Matthew, you really need to reevaluate how much good faith I attribute to you in this regard. Let's face it: your blog is positively dripping with your good faith toward Werner Patels.

    Given that you fail to grasp some of the most basic concepts our legal system is based on, when you claim that you work in the legal system, I become extremely skeptical. Maybe you'd like to be a lawyer someday, but I severely doubt you've put in the seven plus years of school necessary to accomplish that feat.

    My general rule of thumb is that anyone who devotes their blog to the sole purpose of attacking another blogger is either approximately 17 years old, or merely stunted in their psychological development.

    You can feel free to enlighten us as to which one of these is the case.

    Finally, your estimation that a 5/10 construes "excellent spelling, punctuation and grammar" would certainly relegate you to the Dunce corner of any English classroom, but I digress.

  13. I am giving up. You win. Your singular gift for missing the point by increasingly large margins has caused me to throw in the towel. Declare victory, sing it from the hilltops, tell all your friends I ran away because I simply could not stand up to your irrefutable logic and superior writing. The day is yours Patrick. Enjoy it. I and my fellow acne-scarred lawyer wannabes will skulk off to play World of Warcraft. I won't dare show my face around here anymore, such is my humiliation.

    I will say, in parting, that it is clear to me that you have not, in the least, understood the argument that I have put forward at all. Given your insistence on attacking me, rather than my ideas, I suspect you realize that too. There seems to be no real-world nor hypothetical example simple enough to through to you, and coloured blocks and crayons won't fit in the comments box. You seem intelligent, so I suspect that your obduracy is by choice. I'm not saying this with any sense of triumph - I have no beef with you, and had no intention of tripping you up, scoring points or "demolishing" your arguments. I would have been interested to see how a thoughtful advocate of capital punishment would deal with what I see to be a crucial point. I will have to continue to wait.

    As to my blog: as I mentioned, my beef with Werner is personal. The man has directed racial slurs at me, accompanied by carefully vague threats to my person. Your choose to deal with Canadian Cynic, PSA, and Red Tory by "unmasking" them, I choose to deal with Werner on my way. Were he to apologize for the insults and refrain from continuing promulgating similar bigotry on his blog, I'll stop. I have told him this before, and await his reply (while I wait, and as long as we're speaking of the psychologically stunted, I need hardly direct your attention to your blog's banner, need I?) I'm sure all of that's different somehow, and I've no doubt you'll enlighten me at some length as to why. Please don't bother.

    And finally: In addition to spelling and grammar, "Composition" referred to what it usually does in that context: that is, the logic, structure and organization of his argument. His spelling is how he managed even the score he did.

    I've no doubt you'll have the last word no matter what, but feel free to not post this if it will spare us all any more of your self-important windbaggery as you explain at great and turgid length how I'm wrong, you're right, and how even the sun hardly dares compete with your brilliance in your hermetically sealed little world.

    Oh, and no, I'm not a lawyer. I have no more connection to law than you. I chose "law" out of the options blogger gave me as a joke to go along with the meaning of my username. That remains as irrelevant to the point now as it did at the beginning, for the reasons that I explained and you, again, failed to grasp.

    Rip away Patrick! I look forward to ignoring your sophomoric soporifics.

  14. Wait. Hold on a minute.

    ...You had a point?

    I thought you were just being a jackass.


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