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Help Me Out Here - Death Penalty Debate (Page 3)
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Apr 15, 2005, 08:32 AM
 
Originally Posted by SimeyTheLimey
No it doesn't. I could go into details, but that's unnecessary. Suffice to say it is easy to make your assertion, but it doesn't stand up to legal analysis.
The Universal Declaration of Human Rights speaks of the inalienability of rights, and by that it means that human have rights because of their nature. If rights are inalienable, how do you explain one lose them from committing a crime? It is a contradiction.
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Apr 15, 2005, 08:53 AM
 
Originally Posted by undotwa
The Universal Declaration of Human Rights speaks of the inalienability of rights, and by that it means that human have rights because of their nature. If rights are inalienable, how do you explain one lose them from committing a crime? It is a contradiction.
Agreed.
Even when a person is guilty, they still have those basic rights.
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Apr 15, 2005, 10:03 AM
 
Originally Posted by undotwa
The Universal Declaration of Human Rights speaks of the inalienability of rights, and by that it means that human have rights because of their nature. If rights are inalienable, how do you explain one lose them from committing a crime? It is a contradiction.

The Universal Declaration of Human Rights speaks of universal human rights, it does not say that people can't be criminally punished. For example, it says you have the right to liberty. You can still be tried, convicted, and sentenced to jail. Jail deprives you of liberty, but as long as the process satisfies certain norms (also discussed in the Universal Declaration), that is fine.

There are more basic problems with your analysis to do with the non-binding status of the document (it's a General Assembly Resolution) and reservations that were attached. But in any case, most of the states that signed it had the death penalty at the time they signed it, and certainly did not understand it to outlaw their statutes. So yours is a nice argument that is sometimes advanced even by quite sophisticated international lawyers, but it is flat wrong.
     
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Apr 15, 2005, 10:18 AM
 
Originally Posted by SimeyTheLimey
The Universal Declaration of Human Rights speaks of universal human rights, it does not say that people can't be criminally punished. For example, it says you have the right to liberty. You can still be tried, convicted, and sentenced to jail. Jail deprives you of liberty, but as long as the process satisfies certain norms (also discussed in the Universal Declaration), that is fine.

There are more basic problems with your analysis to do with the non-binding status of the document (it's a General Assembly Resolution) and reservations that were attached. But in any case, most of the states that signed it had the death penalty at the time they signed it, and certainly did not understand it to outlaw their statutes. So yours is a nice argument that is sometimes advanced even by quite sophisticated international lawyers, but it is flat wrong.
Unfortunately even the US constitution does not allow 'cruel and unusual punishment'. Given what the Lancet has recently uncovered about the sorry state of the application of the death sentence in Texas and Virginia, it seems likely that many executions are currently unconstitutional, as the prisoners are invariably fully aware of their circumstances.

http://news.bbc.co.uk/1/hi/health/4444473.stm

(Original Lancet / AMA study is here but requires registration)
     
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Apr 15, 2005, 10:23 AM
 
Originally Posted by nath
Unfortunately even the US constitution does not allow 'cruel and unusual punishment'. Given what the Lancet has recently uncovered about the sorry state of the application of the death sentence in Texas and Virginia, it seems likely that many executions are currently unconstitutional, as the prisoners are invariably fully aware of their circumstances.

http://news.bbc.co.uk/1/hi/health/4444473.stm

(Original Lancet / AMA study is here but requires registration)
Last time I checked, the Lancet doesn't construe the US Constitution.
     
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Apr 15, 2005, 10:28 AM
 
Originally Posted by SimeyTheLimey
The Universal Declaration of Human Rights speaks of universal human rights, it does not say that people can't be criminally punished. For example, it says you have the right to liberty. You can still be tried, convicted, and sentenced to jail. Jail deprives you of liberty, but as long as the process satisfies certain norms (also discussed in the Universal Declaration), that is fine.

There are more basic problems with your analysis to do with the non-binding status of the document (it's a General Assembly Resolution) and reservations that were attached. But in any case, most of the states that signed it had the death penalty at the time they signed it, and certainly did not understand it to outlaw their statutes. So yours is a nice argument that is sometimes advanced even by quite sophisticated international lawyers, but it is flat wrong.
It's actually not that easy.
Some, well, not so friendly regimes (e. g. the GDR) have signed the that declaration. Obviously it didn't cause those countries to change their attitude towards human rights, but that doesn't mean they did adhere to the spirit and the intention of that declaration.

Also, I assume you don't want to imply that -- whenever certain conditions are fulfilled -- you can do away with those bothersome human rights. Right? It's not a matter of papers, laws or treaties you sign, it's a matter of attitude. And at least when I was living in the states, it seemed to be the basis your country was founded on.
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Apr 15, 2005, 10:34 AM
 
Originally Posted by SimeyTheLimey
Last time I checked, the Lancet doesn't construe the US Constitution.
Sure. However they are medical experts, and do consider full consciousness during execution to be a cruel and unusual punishment, which is quite specifically outlawed in the US constitution.

Also, it seems that the states of Texas and Virginia agree, otherwise they probably wouldn't be at least attempting to supply a full anaesthetic service for each execution.
     
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Apr 15, 2005, 10:43 AM
 
Originally Posted by nath
Sure. However they are medical experts, and do consider full consciousness during execution to be a cruel and unusual punishment, which is quite specifically outlawed in the US constitution.
That's a leap. Assuming they are medical experts, and assuming a case came up to a competant court where such experts are called on, and assuming that the court gives their testimony weight -- then what, exactly?

Where exactly did you get this legal construction that cruel and unusual = conscious during execution? Cases please.
     
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Apr 15, 2005, 11:01 AM
 
Originally Posted by SimeyTheLimey
That's a leap. Assuming they are medical experts
They are the Lancet, probably the world's most respected medical journal. Alongside the BMJ, they have published the most important medical breakthroughs of the last hundred years.

Seriously, their expertise in medical matters is not really in question, unless you have information to the contrary.

Originally Posted by SimeyTheLimey
Where exactly did you get this legal construction that cruel and unusual = conscious during execution?
Without anaesthesia, the person would experience suffocation and excruciating pain - but would not be able to move [due to paralysis induced by pancuronium bromide].
Suffocation and excuciating pain whilst being fully aware. Sounds pretty cruel to me. Certainly unusual. Do you disagree?
     
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Apr 15, 2005, 11:07 AM
 
You really need to stay away from the news Cody Dawg. They are manipulating your feelings with sensationalist coverage of events that otherwise wouldn't have any effect on your life.
     
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Apr 15, 2005, 12:43 PM
 
Originally Posted by nath
They are the Lancet, probably the world's most respected medical journal. Alongside the BMJ, they have published the most important medical breakthroughs of the last hundred years.

Seriously, their expertise in medical matters is not really in question, unless you have information to the contrary.





Suffocation and excuciating pain whilst being fully aware. Sounds pretty cruel to me. Certainly unusual. Do you disagree?
It doesn't matter how respected they are, they don't decide US legal and constitutional issues. At the end of the day, only the Supreme Court can do that. But even the Supreme Court can't do so without a properly positioned case before it, and even then, not without some consistency with established principles governing the issue. As much as all sides malign the Court, it generally does not make major leaps.

You are asserting that the definition of Cruel and Unusual punishment under the Eighth Amendment is synonymous with consciousness. Again, I am asking you where you get that idea from. I.e. which case establishes that legal definition?

Bear in mind that the US Constitution specifically refers to the death penalty, and that the Supreme Court has many times held that the death penalty is constitutional.
     
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Apr 15, 2005, 01:00 PM
 
Originally Posted by SimeyTheLimey
It doesn't matter how respected they are, they don't decide US legal and constitutional issues. At the end of the day, only the Supreme Court can do that. But even the Supreme Court can't do so without a properly positioned case before it, and even then, not without some consistency with established principles governing the issue. As much as all sides malign the Court, it generally does not make major leaps.

You are asserting that the definition of Cruel and Unusual punishment under the Eighth Amendment is synonymous with consciousness. Again, I am asking you where you get that idea from. I.e. which case establishes that legal definition?

Bear in mind that the US Constitution specifically refers to the death penalty, and that the Supreme Court has many times held that the death penalty is constitutional.
I'm not attempting to make a legal case - this is the Poli/War forum, not your personal courtroom!

I'm saying that I believe suffocation and excuciating pain whilst being fully aware, yet paralised, is a cruel and unusual punishment.

And I believe it is logical that one of the reasons two different anaesthetics are adminstered before a lethal injection is to prevent the mandated death penalty from contradicting the amendment concerning 'cruel and unusual punishment'. To enable the death sentence to be carried out without causing unnecessary pain and suffering.
     
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Apr 15, 2005, 01:03 PM
 
Originally Posted by nath
I'm not attempting to make a legal case - this is the Poli/War forum, not your personal courtroom!

I'm saying that I believe suffocation and excuciating pain whilst being fully aware, yet paralised, is a cruel and unusual punishment.
Then don't make assertions about constitutionality.
     
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Apr 15, 2005, 01:07 PM
 
Originally Posted by SimeyTheLimey
Then don't make assertions about constitutionality.


Then please define what you would describe as a cruel and unusual punishment. Bearing in mind that it has to be worse than suffocation in excruciating pain whilst paralised.
     
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Apr 15, 2005, 01:07 PM
 
Originally Posted by SimeyTheLimey
It doesn't matter how respected they are, they don't decide US legal and constitutional issues. At the end of the day, only the Supreme Court can do that. But even the Supreme Court can't do so without a properly positioned case before it, and even then, not without some consistency with established principles governing the issue. As much as all sides malign the Court, it generally does not make major leaps.

You are asserting that the definition of Cruel and Unusual punishment under the Eighth Amendment is synonymous with consciousness. Again, I am asking you where you get that idea from. I.e. which case establishes that legal definition?

Bear in mind that the US Constitution specifically refers to the death penalty, and that the Supreme Court has many times held that the death penalty is constitutional.
It seems to me that you need the SC to make up your mind. Here, the question is not necessarily to abolish the death penalty, but to assure it's at least executed in a `humane' way.
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Apr 15, 2005, 01:08 PM
 
Originally Posted by SimeyTheLimey
Bear in mind that the US Constitution specifically refers to the death penalty, and that the Supreme Court has many times held that the death penalty is constitutional.
And now it appears that the Supreme Court was terribly misinformed with regards to the experience of the death penalty for the 'patient'.
     
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Apr 15, 2005, 01:17 PM
 
SimeytheLimey just likes to drag each discussion towards his speciality, law, so that he can PWN everyone.
     
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Apr 15, 2005, 02:00 PM
 
Originally Posted by REB3L
SimeytheLimey just likes to drag each discussion towards his speciality, law, so that he can PWN everyone.
If you argue that the death penalty is unconstitutional, what the heck do you think that is BUT a discussion of law?


Originally Posted by nath
And now it appears that the Supreme Court was terribly misinformed with regards to the experience of the death penalty for the 'patient'.

nath: I would not claim to be any kind of authority on this issue, but just for you I took a quick look at the case law.

As far as I can tell, neither the states nor the US Supreme Court have invalidated any method of execution just because there is some pain involved. On the contrary, they seem to have upheld means that are certainly painful such as hanging, electrocution, and gas. The constitutional trigger seems to be whether a means inflicts unnecessary pain. It's not just conservative courts that have upheld it, but also courts in liberal circuits such as the 9th Circuit. E.g. Campbell v. Wood, 18 F.3d 662 (9th Cir. 1994) (holding that hanging isn't cruel and unusual punishment even though other states had moved to less painful methods like lethal injections).
     
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Apr 15, 2005, 02:23 PM
 
Originally Posted by SimeyTheLimey
If you argue that the death penalty is unconstitutional, what the heck do you think that is BUT a discussion of law?
Don't lie. I said "it seems likely that many executions are currently unconstitutional". That is not the same thing as "the death penalty is unconstitutional". You should be ashamed of such a blatant misrepresentation.

1. The Lancet have uncovered compelling evidence that due to the negligent application of anaesthesia, the subjects are experiencing suffocation and excruciating pain - but are not be able to move [due to paralysis induced by pancuronium bromide].

2. I believe that suffocation and excruciating pain whilst paralysed is cruel and unusual treatment.

3. The US constitution forbids cruel and unusual punishment.

Because this is new data, it will not have been included in any of the case law you keep harping on about. Sadly you seem perversely determined to avoid addressing whether you consider suffocation and excruciating pain whilst paralysed to be cruel and unusual.
     
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Apr 15, 2005, 02:29 PM
 
Originally Posted by SimeyTheLimey
If you argue that the death penalty is unconstitutional, what the heck do you think that is BUT a discussion of law?
I believe the OP was in regard to the religious and moral aspects of the death penalty, not the legality.
     
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Apr 15, 2005, 02:35 PM
 
Originally Posted by nath
Because this is new data, it will not have been included in any of the case law you keep harping on about. Sadly you seem perversely determined to avoid addressing whether you consider suffocation and excruciating pain whilst paralysed to be cruel and unusual.
What the Lancet study is talking about sounds to my inexpert ears considerably less painful than death by hanging or poison gas -- both of which have been recently upheld as not violating the Cruel and Unusual clause. The standard isn't total painlessness, nor in my opinion should it be. The standard that exists -- no infliction of unnecessary pain -- seems to me to be the appropriate one.

However, if there is any real evidence of botched executions, then I am quite certain it will be litigated. It's not like the issue isn't given attention here. Nobody is arguing in favor of botching executions, but pointing to a botch in an execution is not an argument for unconstitutionality. All you do is unbotch it and then carry out the lawful execution properly.

But the Lancet? Who really cares what they think. The whole thing reeks of politicization.
     
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Apr 15, 2005, 03:22 PM
 
Originally Posted by SimeyTheLimey
pointing to a botch in an execution is not an argument for unconstitutionality.
If you accept that suffocation and excruciating pain whilst paralysed is cruel and unusual punishment, and that cruel and unusual punishment is explicitly unconstitutional, then the executions that have been conducted in this manner were unconstitutional.

Originally Posted by SimeyTheLimey
But the Lancet? Who really cares what they think. The whole thing reeks of politicization.



edit: thanks for acknowledging being caught completely changing my words, by the way

for the record:

"It seems likely that many executions are currently unconstitutional"
***turns into***
"the death penalty is unconstitutional"

magic!
     
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Apr 15, 2005, 03:59 PM
 
Originally Posted by nath
"It seems likely that many executions are currently unconstitutional"
***turns into***
"the death penalty is unconstitutional"
That's mistaken. At worst, what you have is executions that are constitutional done badly. The constitutionality is a legal question related to the decision to do something. For example, the statute authorizing the penalty, the procedural rules of the court, the regulations that describe the execution itself. Just botching the execution itself doesn't implicate its constitutionality. It might raise a question of competance of the people carrying out the execution, but not the constitutionality of the penalty.

Basically, I thought you understood that. Once you started bringing constitutionality into the picture I assumed you were attacking the constitutionality of the death penalty itself. If you accept that the death penalty itself is constitutional, then I have no issue. I really couldn't give a damn what specific method is used, so long as it isn't botched.

But really, do you think the Lancet study was commissioned to help Virginia improve its procedures for execution? If you think that was their motivation, I have some swamp in Louisiana to sell you.
     
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Apr 15, 2005, 04:08 PM
 
Originally Posted by SimeyTheLimey
Once you started bringing constitutionality into the picture I assumed you were attacking the constitutionality of the death penalty itself.
I don't see how. I was quite clear:
"it seems likely that many executions are currently unconstitutional"

It's pretty clear and specific, maybe you just read it a bit fast.

Originally Posted by SimeyTheLimey
But really, do you think the Lancet study was commissioned to help Virginia improve its procedures for execution?
No, I think it was commissioned to bring attention to the fact that executions are being conducted in a manner that is in contradiction to an amendment to the US constitution.

Glad to finally establish that you think this is a bad thing though. Unconstitutional or not.
     
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Apr 15, 2005, 04:10 PM
 
Originally Posted by SimeyTheLimey
That's mistaken. At worst, what you have is executions that are constitutional done badly. The constitutionality is a legal question related to the decision to do something. For example, the statute authorizing the penalty, the procedural rules of the court, the regulations that describe the execution itself. Just botching the execution itself doesn't implicate its constitutionality. It might raise a question of competance of the people carrying out the execution, but not the constitutionality of the penalty.
No, At worst you now have a crime! If the authorities knowingly and intentionally torture a living human, they can not claim that it is authorized by a court. They can be prosecuted if one could find a competent court. (Actually, it is possible that a surviving relative might be able to sue for damages.) sam
     
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Apr 15, 2005, 05:38 PM
 
Originally Posted by SVass
a) Innocent people ARE incarcerated every day. Guantanamo just released a bunch of them! Dna analysis has also proven innocence of many convicted persons.
But we don't throw out the entire system of punishment on the basis of a few innocent people being incarcerated. Isn't it more cruel and inhumane to lock someone up for the rest of their life rather than a quick bullet to the head?

b) Hogwash. Our system assumes that police and prosecutors aren't liars which, unfortunately, they are.
Because we all know prisons are full of people who would never lie and never did anything wrong.
     
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Apr 16, 2005, 06:18 PM
 
Originally Posted by SimeyTheLimey
But the Lancet? Who really cares what they think.
wow.

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Apr 17, 2005, 03:53 AM
 
Originally Posted by SimeyTheLimey
The Universal Declaration of Human Rights speaks of universal human rights, it does not say that people can't be criminally punished. For example, it says you have the right to liberty. You can still be tried, convicted, and sentenced to jail. Jail deprives you of liberty, but as long as the process satisfies certain norms (also discussed in the Universal Declaration), that is fine.

There are more basic problems with your analysis to do with the non-binding status of the document (it's a General Assembly Resolution) and reservations that were attached. But in any case, most of the states that signed it had the death penalty at the time they signed it, and certainly did not understand it to outlaw their statutes. So yours is a nice argument that is sometimes advanced even by quite sophisticated international lawyers, but it is flat wrong.
Definition of inalienable:

From The Collaborative International Dictionary of English v.0.48:

Inalienable \In*al"ien*a*ble\, a. [Pref. in- not + alienable:
cf. F. inali['e]nable.]
Incapable of being alienated, surrendered, or transferred to
another; not alienable; as, in inalienable birthright.
[1913 Webster]

The Preamble of the Declaration:

Whereas recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world,

i.e. all members have the same, inalienable rights.

Article 3.

Everyone has the right to life, liberty and security of person.

Take it or leave it. That is what the declaration says.

P.S. I don't care about the binding status of the declaration.
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Apr 17, 2005, 04:07 AM
 
Originally Posted by Cody Dawg
Okay, so a lot of you will remember that I was a diehard death penalty supporter until a few months ago. I decided to err on the side of the living and withdraw my support for the death penalty. If we made one mistake and executed a person who was not guilty then we are no better than a lot of murderers. That was my first reasoning.

Secondly, my inner spirituality and religion dictated that a more peaceful and non-violent attitude should prevail.

But now I'm reading how that sex offender who murdered that little girl here in Florida buried her alive and let her die.

Link.

I cannot think of a more horrible way to die and I have to say, I'm struggling with this. I just want to yell, "Kill the bastard - don't wait, just kill him."

Why should or should not this bastard be put to death?

I am sick to my stomach about it.

Who would do such a think to such a sweetheart of a girl?



Death Penalty is wrong, I don't now and will never support it for any one.
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Apr 17, 2005, 08:36 AM
 
Originally Posted by undotwa
P.S. I don't care about the binding status of the declaration.
Then your argument is simply sophistry. Anyone can misquote something out of context and say "aha!"
     
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Apr 17, 2005, 08:00 PM
 
Originally Posted by SimeyTheLimey
Then your argument is simply sophistry. Anyone can misquote something out of context and say "aha!"
My argument is not sophistry just because I don't care about a binding status of a resolution. All I said was that I think the death penalty would be incompatible with the Declaration of Human Rights. You said it wasn't and I demonstrated my reasoning (which you have yet to have done but making patronising and condescending comments at me in this thread). Your opinion is not authoritive, so you can't just be making one line accusations such as 'sophistry' without backing it up or at reasoning yourself. It is quite offensive actually.
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Apr 17, 2005, 08:44 PM
 
Originally Posted by undotwa
My argument is not sophistry just because I don't care about a binding status of a resolution. All I said was that I think the death penalty would be incompatible with the Declaration of Human Rights. You said it wasn't and I demonstrated my reasoning (which you have yet to have done but making patronising and condescending comments at me in this thread). Your opinion is not authoritive, so you can't just be making one line accusations such as 'sophistry' without backing it up or at reasoning yourself. It is quite offensive actually.
Sorry, I don't really have the energy to explain why a general assembly resolution isn't binding, and was never intended to be binding. Nor why the parties to the resolution never intended nor understood it to outlaw the death penalty in properly conducted adjudications. Nor why preambles in general are never considered part of the authoritative text, or why if you want to find binding language you should be looking to the International Covenant on Civil and Political Rights, and so on. The Universal Declaration was essentially implemented and replaced by the Covenant. You were simply looking in the wrong place.

Now, what does international law really say. The Covenant says:

Article 6

Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life.

In countries which have not abolished the death penalty, sentence of death may be imposed only for the most serious crimes in accordance with the law in force at the time of the commission of the crime and not contrary to the provisions of the present Covenant and to the Convention on the Prevention and Punishment of the Crime of Genocide. This penalty can only be carried out pursuant to a final judgment rendered by a competent court.

When deprivation of life constitutes the crime of genocide, it is understood that nothing in this article shall authorize any State Party to the present Covenant to derogate in any way from any obligation assumed under the provisions of the Convention on the Prevention and Punishment of the Crime of Genocide.

Anyone sentenced to death shall have the right to seek pardon or commutation of the sentence. Amnesty, pardon or commutation of the sentence of death may be granted in all cases.

Sentence of death shall not be imposed for crimes committed by persons below eighteen years of age and shall not be carried out on pregnant women.
Nothing in this article shall be invoked to delay or to prevent the abolition of capital punishment by any State Party to the present Covenant.
Thus, you can see that the death penalty is not outlawed. The right to life does not prevent a court imposing the death penalty. Your statement was simply wrong. (Note: the language about the juvenile death penalty was excepted by a reservation by the US, but the argument was raised about whether the Covenant had risen to the level of a non-derogable norm of international law. In any case, it has been abolished now, so that once live issue is moot).

This is fairly esoteric stuff. I tried to keep this simple by pointing out that even using the Universal Declaration your argument is obviously absurd. The language you pointed to borrows language from the US Declaration of Independence about inalienable rights to life and liberty. Since your argument is that life can't be taken through judicial process, in order to be consistent, you must also believe that liberty can't be taken by judicial process because the Declaration treats the two the same. That means by your argument jail sentences are as illegal as you say the death penalty is. Because no nation has ever suggested that jail sentences are outlawed the construction must be wrong. If the construction with respect to liberty is wrong, then your construction with respect to life is equally wrong.

And yes it was sophistry because I don't think you ever researched the issue before making the argument. You simply latched onto something that you thought would be impressive. That's not a good way to argue a point.
( Last edited by SimeyTheLimey; Apr 17, 2005 at 08:50 PM. )
     
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Apr 18, 2005, 01:20 AM
 
Originally Posted by SimeyTheLimey
Sorry, I don't really have the energy to explain why a general assembly resolution isn't binding, and was never intended to be binding. [/b]
Why do you take me as an idiot?


Nor why the parties to the resolution never intended nor understood it to outlaw the death penalty in properly conducted adjudications. Nor why preambles in general are never considered part of the authoritative text, or why if you want to find binding language you should be looking to the International Covenant on Civil and Political Rights, and so on. The Universal Declaration was essentially implemented and replaced by the Covenant. You were simply looking in the wrong place.
When I said 'The death penalty violates the Universal Declaration of Human Rights' the worst place to look would be a different document. I'm speaking about the UNDHR as such, not the International Covenant. Stop trying to divert the course of the argument.


Thus, you can see that the death penalty is not outlawed. The right to life does not prevent a court imposing the death penalty. Your statement was simply wrong. (Note: the language about the juvenile death penalty was excepted by a reservation by the US, but the argument was raised about whether the Covenant had risen to the level of a non-derogable norm of international law. In any case, it has been abolished now, so that once live issue is moot).
I'm not saying the death penalty is outlawed or not. I'm not even saying it violates international law. I said it goes against the Universal Declaration of Human Rights - I said nothing else. You are putting words in my mouth and using those words as a basis for your retorts.


This is fairly esoteric stuff. I tried to keep this simple by pointing out that even using the Universal Declaration your argument is obviously absurd. The language you pointed to borrows language from the US Declaration of Independence about inalienable rights to life and liberty. Since your argument is that life can't be taken through judicial process, in order to be consistent, you must also believe that liberty can't be taken by judicial process because the Declaration treats the two the same. That means by your argument jail sentences are as illegal as you say the death penalty is. Because no nation has ever suggested that jail sentences are outlawed the construction must be wrong. If the construction with respect to liberty is wrong, then your construction with respect to life is equally wrong.
Liberty is not just freedom to make choice, but freedom from injustice:



BTW: the essence of the preamble is reiterated in article 30:

Article 30.

Nothing in this Declaration may be interpreted as implying for any State, group or person any right to engage in any activity or to perform any act aimed at the destruction of any of the rights and freedoms set forth herein.

Does not that imply that judiciaries were the resolution binding, have no right to infringe upon the right to life?


And yes it was sophistry because I don't think you ever researched the issue before making the argument. You simply latched onto something that you thought would be impressive. That's not a good way to argue a point.
I'm not writing a thesis, not every word has to be cross referenced back. I simply made an assertion, you retorted it, and I then reasoned my arguments. I don't have research every single post in exhaustive depth.

Again, your tone is very patronising.
( Last edited by undotwa; Apr 18, 2005 at 01:31 AM. )
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Apr 18, 2005, 04:50 PM
 
Undotwa: I'm sorry you find my tone patronizing. I mean it, and I apologize. It is, however, frustrating to have an argument thrown at you and to know that it is wrong on many levels, but not to be able to simply say "don't be silly." I tried that, and you came back and demanded proof. Proof, that is rather complex. It's frustrating to be told in effect, that unless I am willing to sit down and write a book then your incorrect answer is right. Given that frustration, it is tempting to say (as I came close to doing) that this simply is wrong however alluring your point may be from a layman's perspective. It is tempting to just pull rank.

But, that is a pretty arrogant way to argue I will concede. However, there is arrogance here to go around. You posted a one line argument, and demand a book to refute it. You don't have to do any research, but you are demanding that I do it for you. If I were arguing an issue about medicine or chemistry I wouldn't be challenging a doctor or a chemist the way you are doing me. I would concede that they may have a basis for what they say, and might find it difficult to explain why I am wrong without going way over my head or without regurgitating quite a large chunk of their professional studies. That doctor or chemist would probably be quite frustrated too.

Given that frustration, here are a couple of thoughts:

Your argument is closely analogous to people who build complex constitutional or natural law arguments on the basis of the US Declaration of Independence (whose language the Universal Declaration partially based upon). Doing so is a misuse of the Declaration of Independence because it wasn't written to be used in that way. The Declaration is an argument, not a statute.

Similarly, the Universal Declaration wasn't written to be used in the way you suggest, and just as importantly, your substantive interpretation of what its terms says is flatly inconsistent with what it's writers had in mind, and with their understanding of it. In 1948, the death penalty existed in most of the countries that signed the Universal Declaration. You think the preamble is inconsistent with the death penalty, but they didn't think so. Your post hoc reinterpretation of the document isn't persuasive.

Second: although the Universal Declaration isn't intended to be any kind of statement of international law, it has been converted into one by the superceding document I referred you to. The Covenant on Civil and Political Rights was explicitly written to be a binding treaty and explicitly written to replace the Universal Declaration. The relationship between the Covenant and the Declaration is analogous to the relationship between the Declaration of Independence and the US Constitution. One is appropriate to quote as an imporant document, and the other is just an interesting piece of historical background. Therefore, if you want to make an argument about inconsistency with international norms (which is what your argument about the Universal Declaration was) then it is to the Covenant you should be looking. This is not misdirection. It is trying to be helpful -- trying to put you back on the correct path. It's directing you to a respectible argument.

As for liberty interests. Liberty as used in all of these documents is a broad concept. You seem to be under the impression that it means only having choices. I suggested to you (correctly) that liberty includes freedom from physical restraint. Imprisonment is a restraint on liberty. This is, I am afraid, black letter law. If you disagree with this, then you are just making things up out of whole cloth.

Given that, there isn't any way for you to make a consistent argument even allowing for your reliance on the wrong document and misuse of that document. If the death penalty is inconsistent with the preamble to the Declaration, then so is a jail sentence. That is, of course, an absurd result, which is a clue that your argument was absurd.

However, take a look at the Covenant. There is meat there for you. It is clearly written to encourage the abolition of the death penalty. But it also makes quite clear that the real issue is due process. Neither the death penalty nor jail sentences are inconsistent with life and liberty so long as there is due process. That is why the Covenant expressly limits its prohibition to arbitrary deprivation of life.


[edit: I realize that at this point Troll or someone else will come along and quote some off the wall human rights group or law professor who will make the exact same argument you made. As I indicated before, there are international lawyers who argue that the Universal Declaration is customary international law and relevant to quote in the death penalty context -- no doubt precisely because of its sweeping hortatory language. However, those arguments are dreadfully weak and a huge stretch, just as are arguments based on the US Declaration of Independence. My position is very much the orthodox one.]
( Last edited by SimeyTheLimey; Apr 18, 2005 at 05:55 PM. )
     
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Apr 18, 2005, 08:25 PM
 
Originally Posted by SimeyTheLimey
Undotwa: I'm sorry you find my tone patronizing. I mean it, and I apologize. It is, however, frustrating to have an argument thrown at you and to know that it is wrong on many levels, but not to be able to simply say "don't be silly." I tried that, and you came back and demanded proof. Proof, that is rather complex. It's frustrating to be told in effect, that unless I am willing to sit down and write a book then your incorrect answer is right. Given that frustration, it is tempting to say (as I came close to doing) that this simply is wrong however alluring your point may be from a layman's perspective. It is tempting to just pull rank.

But, that is a pretty arrogant way to argue I will concede. However, there is arrogance here to go around. You posted a one line argument, and demand a book to refute it.

I wasn't critisizing what you said, per se. It was simply your tone that upset me.
You don't have to do any research, but you are demanding that I do it for you. If I were arguing an issue about medicine or chemistry I wouldn't be challenging a doctor or a chemist the way you are doing me. I would concede that they may have a basis for what they say, and might find it difficult to explain why I am wrong without going way over my head or without regurgitating quite a large chunk of their professional studies. That doctor or chemist would probably be quite frustrated too.

Given that frustration, here are a couple of thoughts:

Your argument is closely analogous to people who build complex constitutional or natural law arguments on the basis of the US Declaration of Independence (whose language the Universal Declaration partially based upon). Doing so is a misuse of the Declaration of Independence because it wasn't written to be used in that way. The Declaration is an argument, not a statute.

Similarly, the Universal Declaration wasn't written to be used in the way you suggest, and just as importantly, your substantive interpretation of what its terms says is flatly inconsistent with what it's writers had in mind, and with their understanding of it. In 1948, the death penalty existed in most of the countries that signed the Universal Declaration. You think the preamble is inconsistent with the death penalty, but they didn't think so. Your post hoc reinterpretation of the document isn't persuasive.

Second: although the Universal Declaration isn't intended to be any kind of statement of international law, it has been converted into one by the superceding document I referred you to. The Covenant on Civil and Political Rights was explicitly written to be a binding treaty and explicitly written to replace the Universal Declaration. The relationship between the Covenant and the Declaration is analogous to the relationship between the Declaration of Independence and the US Constitution. One is appropriate to quote as an imporant document, and the other is just an interesting piece of historical background. Therefore, if you want to make an argument about inconsistency with international norms (which is what your argument about the Universal Declaration was) then it is to the Covenant you should be looking. This is not misdirection. It is trying to be helpful -- trying to put you back on the correct path. It's directing you to a respectible argument.

As for liberty interests. Liberty as used in all of these documents is a broad concept. You seem to be under the impression that it means only having choices. I suggested to you (correctly) that liberty includes freedom from physical restraint. Imprisonment is a restraint on liberty. This is, I am afraid, black letter law. If you disagree with this, then you are just making things up out of whole cloth.

Given that, there isn't any way for you to make a consistent argument even allowing for your reliance on the wrong document and misuse of that document. If the death penalty is inconsistent with the preamble to the Declaration, then so is a jail sentence. That is, of course, an absurd result, which is a clue that your argument was absurd.

However, take a look at the Covenant. There is meat there for you. It is clearly written to encourage the abolition of the death penalty. But it also makes quite clear that the real issue is due process. Neither the death penalty nor jail sentences are inconsistent with life and liberty so long as there is due process. That is why the Covenant expressly limits its prohibition to arbitrary deprivation of life.


[edit: I realize that at this point Troll or someone else will come along and quote some off the wall human rights group or law professor who will make the exact same argument you made. As I indicated before, there are international lawyers who argue that the Universal Declaration is customary international law and relevant to quote in the death penalty context -- no doubt precisely because of its sweeping hortatory language. However, those arguments are dreadfully weak and a huge stretch, just as are arguments based on the US Declaration of Independence. My position is very much the orthodox one.]
What you're writing makes sense to me. Thank you very much for the apology; I'm sorry for being upset.

What's the difference between arbitrarily taking of life and executing someone?

P.S. I know the difference between international law and a declaration moved by the General Assembly. And I never claimed the Universal Declaration of Human Rights to be international law as such. I was not trying to make a statement about international law.
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Apr 18, 2005, 11:16 PM
 
Originally Posted by undotwa
What you're writing makes sense to me. Thank you very much for the apology; I'm sorry for being upset.

What's the difference between arbitrarily taking of life and executing someone?

P.S. I know the difference between international law and a declaration moved by the General Assembly. And I never claimed the Universal Declaration of Human Rights to be international law as such. I was not trying to make a statement about international law.
The difference between arbitrarily taking life and execution isn't quite the right question. The better (and proper) question is the difference between judicial and extrajudicial execution. I.e. the judicial death penalty with proper procedural protections as opposed to killing people without due process -- typically for political reasons in repressive states. The two should not be confused, and the Covenant makes that distinction.

I'm afraid that the moment you quoted an international human rights document you unavoidably made an argument based on international law. There is really no way around that. There is no way to make an argument using international law that isn't based on international law.
     
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Apr 18, 2005, 11:31 PM
 
Today's NY Times editorial
"There has been a long and shameful history of prosecutors' striking jurors based on race, often to ensure that black defendants were tried by all-white juries. The prosecutors' tool of choice has often been peremptory challenges, which allow both prosecutors and defendants to remove a limited number of potential jurors without giving a reason.

In a 1986 decision, Batson v. Kentucky, the Supreme Court ruled that it was unconstitutional for prosecutors to use peremptory challenges in a racially discriminatory way. But one of the hardest parts about applying Batson is deciding when a prosecutor's challenges are racially biased. Under Batson, a defendant must first make a prima facie case that a peremptory challenge was racially motivated. The burden then shifts to the prosecutor to give a racially neutral explanation for why he made the challenge.

Today's case concerns California's rules for deciding this question. In determining whether a defendant has made his prima facie case, California uses a more onerous standard than most states, requiring him to prove that it is more likely than not that the prosecutor intended to discriminate. As a practical matter, it is extremely hard to prove why a prosecutor did what he did. The prosecutor in this case excluded all of the African-American potential jurors from the jury, without asking them any questions first. But this was held not to be enough proof.

Batson struck a tremendous blow for fairer criminal trials, but California tilted its rules against defendants. The Supreme Court should reaffirm Batson's important principle by holding California's rules unconstitutional."

In other words, yesterday's law may become null and void tomorrow. The death penalty may disappear because it is judicially misused. I've heard that Sadaam Hussein may face a death penalty even though he may not have violated any law that existed when he performed his acts and he will not have a jury of twelve free persons unassociated with the government. sam
     
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Apr 20, 2005, 01:40 AM
 
Originally Posted by SimeyTheLimey
The difference between arbitrarily taking life and execution isn't quite the right question. The better (and proper) question is the difference between judicial and extrajudicial execution. I.e. the judicial death penalty with proper procedural protections as opposed to killing people without due process -- typically for political reasons in repressive states. The two should not be confused, and the Covenant makes that distinction.

I'm afraid that the moment you quoted an international human rights document you unavoidably made an argument based on international law. There is really no way around that. There is no way to make an argument using international law that isn't based on international law.
I don't see how quoting the Universal Declaration of Human Rights means I'm making an argument based on international law. Afterall, the UDOHR isn't international law. It is merely a declaration of ideals.
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Apr 20, 2005, 07:12 AM
 
Originally Posted by undotwa
I don't see how quoting the Universal Declaration of Human Rights means I'm making an argument based on international law. Afterall, the UDOHR isn't international law. It is merely a declaration of ideals.
No, it's still a part of international law. It's a statement of ideals voted on and passed by the UN General Assembly and pretty much all the governments of the world. It's often said to have achieved the status of customary international law because of it's universality and the respect it is held in as a statement.

Your argument was based on international law in much the same way as making an argument that 2+2=5 would be an argument based on arithmetic. If you made that argument, you can't claim that it isn't an argument based on arithmetic as a way to avoid a challenge to your math. The problem here wasn't just that you cited something non-binding without pointing that out, but also that you misstated it substantively. That's going to draw a challenge, and it is going to be in the same terms as the authority you tried to cite.
     
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May 21, 2007, 08:48 AM
 


Just say "NO" to zombie threads.
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May 21, 2007, 09:33 AM
 
Just say "NO" to spammers, more like.
     
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May 21, 2007, 11:37 AM
 
I haven't read anything here but the first post, so keep that in mind if I'm covering what others have already said.

My opinion: I'm for the death penalty in essence; that is, I support the termination of a human life under certain circumstances, and you'd better believe that if somebody ****ed with my loved ones, they would pay with blood.

That, however, is an unrealistic opinion... nowadays, I'm against the death penalty because I trust no government, no authority. I don't trust the police, or the news, or anyone else that's involved, and neither should you.

EDIT: doh, zombie thread. Ah well. That's what I get for not reading.
     
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May 21, 2007, 11:51 AM
 
It might be a zombie thread but what Ciph's just said is worth repeating:

Originally Posted by Cipher13 View Post
nowadays, I'm against the death penalty because I trust no government, no authority. I don't trust the police, or the news, or anyone else that's involved, and neither should you.
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May 24, 2007, 02:03 AM
 
Wow, you really dug this one out from the grave.
     
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May 24, 2007, 03:15 AM
 
Consider the absurd consequences of a law demanding the unconditional imposition of the death penalty for anyone who is a willing agent of another’s death. The first murder subsequent to such a law would precipitate the extinguishment of the human species.

Since the courts, being obliged to put the murderer to death, would have to use an executioner, who would be obliged both to execute and be executed; as would his executioner, and his executioner’s executioner... This catalytic concatenation of executions would eventually consume the entire population, but would not be able to round itself out: The last man, having executed the second-to-last man, would be left without an executioner. As a sop, he would probably commit suicide, and thus the expiration of a species whose billions had immolated themselves one by one at the feet of the law, would be clinched by an unpunishable crime.

This is the circular fallacy of imposing the death sentence on murderers—It desecrates the very sanctity of life it is intended to uphold.
     
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May 24, 2007, 03:36 AM
 
Originally Posted by iLikebeer View Post
Killing him would be too quick and easy.
Not at all. I've grown to oppose the death penalty because it is in fact the opposite. Life in prison without parole and the guy is gone for good. The family doesn't need to worry about it. Whereas if you give him the death penalty, there will be twenty years of extended legal proceedings before the family is given justice.

The death penalty is more expensive, subject to errors (and not just theoretically), and is harder on the victim's relatives. I don't have any problem with it morally, but practically it seems very inferior to the alternatives.
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May 24, 2007, 02:48 PM
 
People who are for the death penalty always rely on emotion to make their argument. Politicians who support it simply rely on demogogy in order to keep it in law.
     
 
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