Reducing Wrongful Convictions

The details of implementation are the difference between the death penalty working financially and not. So what if we imagined different details? Can we come up with a better system overall? And if we do, where does that leave the death penalty?

One serious problem with our present system is the high rate of false convictions. This doesn't just apply to capital cases; it needs to be fixed across all cases. The system already admits there's a problem, and tries to ameliorate it by providing appeal attorneys to those on death row. But doing that only for death row inmates, and only after years in prison, is treating a symptom, and treating it poorly at that. We need to keep innocents from being convicted in the first place, of any crime!

So what are the causes of wrongful convictions? I am clearly not a lawyer, but from my naive perspective, I see two ways someone gets convicted: pleading guilty, or being found guilty. I'll talk about both in upcoming posts.

2016 Presidential Candidates: Republicans, Part 1

The way our system is set up, electoral votes in most states are winner-take-all. That essentially disenfranchises most voters in the general election; most states' outcome is a foregone conclusion, meaning your vote doesn't matter. Tennessee's electoral votes will all go to the Republican candidate, so why bother voting for President?

The primaries are a different issue. Your vote there matters much more. The problem, of course, is that there are just so many candidates to get familiar with. The below is my attempt to summarize major public statements and headlines regarding the various declared candidates, with links to relevant news articles. Each name links to the Politifact fact-check of that candidate, and their overall record for truth or lies.

We'll start with the Republicans, because they're just so much more interesting lately. There are so many I'm going to have to break them up into multiple posts. I'm going to do the declared candidates first, in alphabetical order by last name, then cover the likely prospective candidates. I am not covering Jack Fellure or Mark Everson. There's virtually zero information about them.

Note that many of these points may seem like negatives, against the candidates. That is not by design. It is likely a consequence of most headlines about candidates in general being negative. I have, however, injected some commentary. I try to roast all candidates equally. Also note that some candidates have many more points than others. This is also not by design; some simply have fewer headlines about them to choose from.


Jeb Bush
Former governor of Florida, brother of W Bush, son of HW Bush.

• Wants to eliminate the minimum wage
• Opposes net neutrality
• Uses the man who started the Iraq War, killing thousands of Americans for no reason at all, as one of his top foreign policy advisers
• ...and has over twenty other advisers who helped craft that epic disaster
•  Claimed that al Qaeda in Iraq didn't exist when Obama took office
• Note that it most definitely did, but also most definitely did not exist when W Bush took office...
• Claimed that the Iraq War was started based on faulty intelligence, when it was not
• Supports the Patriot Act, citing non-existent evidence that it has kept us safe
• Wants to privatize Social Security
• Someone care to explain to me how that's any different than shutting it down? I've never understood that

Ben Carson

• Rejects the theory of evolution, based on the entirely false premise that evolution is opposed to Christianity
• Also thinks that Christians are persecuted in America, because America is like Nazi Germany
• Supports a flat tax that he doesn't even understand the consequences of
• Shills for companies making fraudulent medical claims
• And yet is in favor of mandatory vaccinations
• Wants to eliminate judicial review, functionally neutering the entire concept of checks and balances
• Said Obamacare is the worst thing since slavery
• Thinks Obama may call off the 2016 election
• Just like he did the 2012 election...?

Ted Cruz

• Opposes net neutrality while loudly demonstrating his ignorance on what it actually is, calling it "Obamacare for the internet"
• "It would put the government in charge of determining Internet pricing, terms of service and what types of products and services can be delivered, leading to fewer choices, fewer opportunities and higher prices." Everything about that sentence is wrong!
• Claims global warming isn't happening
• Thinks emergency care is cheaper than preventive care
• Missed 10% of votes the Senate held during his time in office
• Opposes disaster aid from federal government to the states... except his own
• Supports unlimited campaign contributions
•  Because it would make things more fair, you see!
• Shut down the government because his party lost an election, and doesn't regret it
• Oh, and led protests of the government shutdown 
• Said that the recent court decisions on gay marriage and Obamacare are "some of the darkest 24 hours in our nation's history"
•  Aside from, you know, literally thousands of others... get some perspective, man
• Wants to subject the Supreme Court to retention elections because he doesn't like their decisions 
• Don't like the way the system works? Break the system.
• Completely fails to understand how Christians can be opposed to actions of the state of Israel
• And while it's not about Cruz personally, his father has some very strange pseudo-Christian views of his son being a fulfillment of some made-up end-times prophecy...

Carly Fiorina

• Completely failed to run HP
• Opposes net neutrality
• Lies about corporate tax rates
• US corporate tax rates are nominally high, but the actual collection rate (i.e. the number that matters) are quite low because of so many loopholes

Lindsey Graham

• Is willing to raise taxes under some circumstances
• Of course, his idea of raising taxes is very limited, but it's better than the usual "revenue isn't the problem" lie
• Seems to have at least some support for environmental issues, if only to bow to political reality and not because he actually believes in them
• Wants to eliminate habeas corpus, doesn't think imprisoned people should need to be proven guilty
• Also supports suspending civil rights of domestic terror suspects...
• ...and pretty much everyone else...
• Rejects his own party's multiple reports on the Benghazi attacks
• Naturally, we need to keep running investigations until one gives the results he wants
• He said that Obama is not a Socialist, he's a good man!
• Of course, he also says he's extremely liberal, which you can only say if you have no idea what extreme liberals would actually do...
• Says you can't govern based on anger, wants to govern based on realism instead
• Has a completely awful record on foreign policy matters

Mike Huckabee

This guy was governor of Arkansas, ran for President, and now has a Fox News show. He has basically made a living speaking in public for most of my life, so he has more positions than I can possibly cover here. I summarize him thus: America is, was, and should become a Christian nation, wherein his particular version of Christian beliefs are given force of law. This version of Christian beliefs include:

• Christian education in public schools, including young-earth creationism
• Support of Israel removing Palestinians from Palestine
• Banning all non-thereputic abortions, including pregnancies from rape
• Banning gay marriage or adoption
• Amending the Constitution to these ends

He's surprisingly sane on some other issues, and kinda nuts on others. Here's a survey of some things that caught my attention, but like all the candidates, I hope you'll read more:

• Says school shootings happen because God has been removed from schools
• ...despite the fact that church shootings are far more common...
• ...and which god is he worshiping, that can be removed from schools? 'Cause mine can't be...
• Thinks only women who can't control their libido need birth control
• Thinks we're moving towards the criminalization of Christianity
• Called the Obama administration "openly hostile toward the Christian faith"
• Arranged parole for a rapist who raped and murdered again
• Also granted clemency to a man after a claimed religious conversion, who then murdered four police officers
• Rejects the principle of judicial review
• Supports a 30% federal sales tax
• Cut taxes on the rich, raise taxes on the poor...
• Says that vaccines don't cause autism! Yay reality!
• Isn't it sad that I have to point out that he's sane about this?
• Doesn't understand how the ACA handles pre-existing conditions
• Wants to vastly increase the size of the American military
• How is this to be funded? Unclear.
• But he supports peaceful options with Iran
• Told people to not enlist in the military until an overtly Christianity-enforcing President is in place
• Never mind that the last time we had one of those, our military ended up with thousands of dead and tens of thousands of wounded...

George Pataki

And here we find the opposite of Huckabee. For a man who's been in the public spotlight for nearly twenty years, he has relatively few headline-making position statements on major national issues, and most of them are over a decade old. He talks the usual small-government talk, but he's at least somewhat out of step with the typical Republican positions on abortion, the environment, and gun control, which gives me hope he can think independently. I have no reason to think this man is either incompetent or insane.

• Worked to repeal the ACA
• Opposes a national sales tax (as of 2000)

Rand Paul

• Fillibuster'd the renewal of the Patriot Act
• Pledged to end the NSA's bulk surveillance of Americans
• Wants to demilitarize the police
• Recognizes injustice and problems caused by the war on drugs
• Supports medical marijuana
• Wants to end mandatory minimum sentencing
• Wants a flatter income tax
• Most plans like this are just raising taxes on the poor and cutting them on the rich; his apparently doesn't raise taxes on the poor (assuming the details he's not specifying yet don't change anything), so good on him. But there's still something like $200 billion a year in spending cuts that he's not specifying, on top of any others he might make to cover the existing deficits. Any other Republican I'd assume it's social services, but this guy is less predictable.
• Remember that tax cuts for the rich do not generally create jobs, or the first decade of this century would have gone much better economically after the Bush cuts.
• Proposed a bill to punish congresspeople who become lobbyists
• Wants to force Congress to live by its own laws
• Is fighting extrajudicial drone strikes
• Criticizes science he doesn't understand
• Occasionally spews demonstrably false GOP talking points
• Mindless lies kinda piss me off, if you haven't guessed
• Claims that vaccines can cause mental disorders
• "Parents own their children"? Nobody owns children! Children are not property, they are individuals with rights!
• Recognizes that Jesus probably wouldn't launch a preemptive war, and opposes the neocons who have been pushing for war after war for the last decade
• Opposes net neutrality
• And opposes expanding the public domain, which means even longer copyright terms
• Proposed a law ending civil forfeiture
• Tried to outlaw abortions
• By adding a rider to an irrelevant bill
• Wants to eliminate corporate welfare
• Is apparently hated by Fox News
• We report (on what we feel like), you decide (among the choices we present you)

Death Penalty Analysis: Summary

We've looked at four main arguments for the death penalty. Given the wrongful conviction rate is, and will remain, non-zero, argument from justice will always fail. Given the low rate of escape, especially escape with further murders committed, argument from public safety fails. Argument from deterrence is functionally impossible to prove either way. Argument from cost works in theory, but doesn't in practice, because of how our system is set up to minimize wrongful executions.

Should we remove those safeguards? Execute more innocent people to save money?

I imagine most of you will say 'no'. I'll propose one last thought experiment instead: suppose we make all trials for either death penalty or life in prison have the same procedural safeguards. I would argue that that is a good idea; after all, sentencing someone to life in prison is no less taking their life than sentencing someone to die is. Shouldn't they be equally protected? And now the death penalty may actually be cheaper, like in the naive estimate.

But we just made the whole justice system cost-prohibitive; there are a lot more life-in-prison trials than there are death penalty trials. Can society afford to spent tens of billions of dollars on those increased costs? Once again we're putting a price on justice for the innocent. No matter which way you frame it, no matter whether you're talking about death or life, we're always forced to ask the question: what is the dollar value of saving an innocent life?

Death Penalty Analysis: Adding Reality Back In

So from previous posts, argument from cost is the only possibly convincing argument to retain the death penalty. But there were simplifying assumptions I made; we left out a lot of the procedural differences between capital and non-capital cases.

Right now, death penalty cases are subject to additional expensive regulations that other cases aren't. There are two separate trials, lots of judicial oversight, and many additional prosecutor and defense resources are consumed. The appeals process is more complex, and most states provide appeals lawyers that are not constitutionally required to be provided in other appeals cases. All of that is paid for by the state. In theory, all of this is done to reduce the wrongful execution rate.

Let's assume it does. How does that change the arguments?

• Argument from deterrence remains impossible to prove either way.
• Argument from justice still falls against the death penalty, unless the government provided lawyers reduce the false execution rate to zero. Anyone willing to make that claim? I'm not.
• Argument from public safety doesn't have quite as high a standard, as the wrongful execution rate doesn't have to quite get to zero. But given the extremely low escape-and-murder-again rates, it has to get very close to zero. Based on observational evidence, that doesn't seem to happen
• Cost of the death penalty has now gone up substantially compared to life in prison. Executing someone now costs more than simply leaving them in prison forever. The death penalty just lost its only compelling argument.

In theory, the death penalty might make financial sense, if no other kind. In practice, as presently implemented, it doesn't even get that. With the present system, all four arguments work against the death penalty.

Death Penalty Analysis: Argument From Deterrence

It is argued that the death penalty acts as a deterrent in ways that other penalties don't, and thereby lowers the crime rate and improves public safety. I'll admit, that doesn't work for my psychology. Whether I lose my life after fifteen years in prison or after fifty, I've still lost my life. But that's just me. I'm not a representative sample.

We'll try to analyze this argument from a statistical perspective, as well. Going back to our public safety argument, we can figure that something like 120 innocent people are on death row right now. Since they'll be there for about fifteen years, that's about 8 innocents per year killed if we keep the death penalty. Will the deterrence effect of the death penalty existing prevent more murders than that?

The homicide rate in the US is about 14,000 per year. I can't find a number for how many of those are premeditated (and thus subject to deterrent effects), but we can come up with a reasonable number. There are about 100 new death sentences per year, and not all premeditated murders result in a death sentence due to differing laws and circumstances and plea bargains. So let's say 1,000 murders a year are premeditated. In that case, if the death penalty deters even 1% of potential premeditated murders, it makes up for the lost innocent lives.

That's an effect so small that almost no experiment I can imagine could convince me it existed. Smarter people than me have tried, and the results are similarly unconvincing. Given that, I think that's where deterrence has to land: it might work, it might not, and there's no way to tell. This argument is null in either direction.

Death Penalty Analysis: Argument From Cost of Alternatives

Presently, executing a person costs the state more than life imprisonment, largely due to the different laws and regulations around both. This is where reality doesn't match up with my theoretical arguments. We'll start with the theoretical arguments, though, and then see what changes when we add reality. Remember, this is an argument from cost alone, with no moral dimensions in play.

I've found a few numbers for cost-per-inmate-year. Let's pick a low one: $20,000 per year. An executed inmate consumed fifteen prisoner-years of resources, on average. A life-sentence inmate consumes on average 45 prisoner-years of resources, or three times that. That doesn't account for the increased the medical costs of housing an older person, but we'll ignore that for now. This time we're being generous to the anti-death-penalty argument.

So an executed inmate consumes $300,000, and a life inmate consumes $900,000. That's $600,000 saved per execution, all other things being equal. Even using very low costs for inmate housing, and ignoring the medical costs of older prisoners, this argument looks valid on the face of it.

But go back to the false conviction rate; one out of twenty-five inmates is innocent. By executing 25 people rather than sentencing them to life, you've saved $15 million, but at the cost of one innocent life!

Are you willing to spend $15 million to save an innocent life? Remember, that number is the anti-death-penalty extreme. Go the other way: drop the wrongful execution rate to 0.1% and use higher numbers for prisoner incarceration costs. Would you sacrifice one innocent to save $2 billion?

This is a serious question. Don't believe me? Shocked that anyone could ever put a dollar value on something like not killing an innocent person? Take it even further: what if the cost to save an innocent life was fifty trillion dollars? Would you destroy the economy of the whole world for one person? Of course not; far more people than one will die if you do that. At some point the cost of life imprisonment vs. execution overwhelms the state. That's why execution was ever an option in the first place; an impoverished society can not afford the resources to keep an unproductive member of society alive forever.

So what is the dollar value of an innocent human life? US GDP per capita over 45 years is only $2.5 million. More sophisticated statistical estimates come to around $9 million. Those numbers are instructive, but not comprehensive for such a bizarre question.

Or let's put it another way: say we spend $2b saving an innocent life. How many other innocent lives could we have saved spending that money in some other way? How many medical procedures does that pay for? How much food for the hungry? How much clean water? How much is society as a whole giving up to save that one innocent?

And it's not even that simple. Suppose you saved that $2b by executing an innocent, rather than leaving 999 guilty horrid murderers alive and in prison. We're not talking about spending that $2b to give that innocent his life back. We're talking about spending two billion dollars and still leaving an innocent person in jail forever. Is that enough of an improvement to be worth the cost? If given the choice between dying in jail as an old man, or dying now and knowing that $2 billion would be given to the poor, which would you pick?

Not that our government would actually give that money to useful causes; we'd probably invade Iraq again, or something. (They say you should play to your strengths...) But that doesn't answer anything one way or another. And I'm not saying I have the answers. I'm saying there is no easy answer. This is the terrible calculus of government, wherein lives are weighed against money.

All I can say is that the naive argument that the death penalty saves money works. We'll have to see what happens when reality comes back into play.

Death Penalty Analysis: Argument From Public Safety

It can be argued that public safety is served by killing such criminals. A dead person has literally zero chance of harming anyone. An imprisoned person can, in theory, escape and do more harm.

This is less clear-cut than the "justice" argument. People do escape prison, and sometimes they kill innocents while out. So if you execute terrible criminals you may kill innocents by mistake; but if you fail to execute them innocents may die anyway. Now we have an lives-to-lives comparison, if we can just dig up the statistics.

Per this (informal) source, less than 1% of prisoners escape, and most of those are people who walk away from minimum security work gangs, not murderers. Those numbers seem believable. We'll take that 1% number for now, being generous to the pro-execution argument.

Now, people sentenced to execution may still escape and kill people before they die. Time spent on death row varies, but the average is something like fifteen years, plenty of time to escape. The average age of prison admission in Florida is about 30, and while Florida is freakish in many ways, that's consistent with other numbers I'm seeing elsewhere. Let's also assume that a prisoner's average lifespan is about seventy-five years. So someone sentenced to die has about fifteen years to escape and kill again. Someone sentenced to life has about forty-five, or roughly three times that long.

(We'll simplify and assume that escapees are equally distributed by age, meaning a 74-year-old is as likely to escape as a 35-year-old. We'll also assume that an escaped 74-year-old who's spent his entire life in jail and a 35-year-old recent convict are equally dangerous to the general public. Again, we're being generous to the pro-execution argument. Stranger things have happened.)

According to the Bureau of Justice Statistics, there are roughly 170,000 murderers in prison. Per Wikipedia, roughly 3,000 are sentenced to die, and about 160,000 are sentenced to life, so that's consistent with the BJS data.

Now let's pretend we didn't have the death penalty. In that scenario, those 3,000 are sentenced to life instead. We're supposing that 1% of those, or 30, will escape, which again is generous in the extreme. We'll also suppose that a third of those escapes take place in the first 15 years of imprisonment, meaning they would have happened even with the death penalty. So now we have roughly 20 additional escaped murderers who would not have escaped if we'd executed them on schedule. And let's just assume they all kill one person before being recaptured (again, generous, as most escapees are captured very rapidly). So the death penalty saves twenty innocent lives, by this argument.

Now let's go back to our 4% false conviction rate. That means that of that 3,000 sentenced to die, roughly 120 are innocent. Let me say that again, just to get the full horror across: our government is going to kill 120 innocent Americans, no more guilty than you or me. That could be you, your neighbor, your family. This is not abstract, these are actual people that are going to die for no reason, no different than the innocents killed by those escaped prisoners.

Keep the death penalty and 120 innocent people die. Even assuming the wrongful execution rate is 1% instead of 4%, that's still 30 innocent deaths.

Eliminate the death penalty and 20 innocent people die, being extremely generous. For more realistic estimates of escape rates and the number of murders committed by escaped prisoners, a better number is more like two.

I don't see any way to massage these numbers to give a different result. Even being orders of magnitude more generous to the death penalty argument than is reasonable, the math doesn't work out. As long as our wrongful execution rate is higher than 1% and our escape-and-murder rate is less than 1%, the death penalty kills more innocent people than it saves. And the real numbers are a hundred times worse than that.

When evaluated with real-world data, the public safety argument works against the death penalty.

Calibration elections

I've talked in the past about how trust in elections is critical. Right now the system simply can't be audited, by design. We have hyper-partisans building, installing, and maintaining closed systems with known flaws. There's no possibility of recount, and no way of knowing that your vote was counted correctly. As a recent example of this, in a recent UK election a candidate received no votes, despite claiming that he voted for himself. Regardless of that particular situation's outcome, it does lead to some more thoughts.

One of the biggest potential security holes in the election system is the secret ballot. Let me be clear: the secret ballot is absolutely critical to having a functioning democracy. We've all lived our lives in a world with nothing but, so maybe it's harder to see that. But consider what would happen if you could prove to anyone how you voted: your boss, your family, your religious group could threaten you into voting how they want. The only way you can be confident to cast your individual ballot by your preferences is if you can never prove to anyone how you voted.

The down-side is that you can never prove to yourself how your vote was counted. I've proposed better voting machines, based largely around maintaining secret ballots. But we still have reduced faith in elections as a whole because of this. But suppose that mixed among the actual elections we also had calibration elections. Elections not for real people, but only to make sure the system works.

A simple question would be asked. "What is your favorite pizza topping" for example; something utterly trivial and subjective. Ballots in the calibration election would be marked and counted with the exact hardware being used for the real elections. The only difference would be the ballots themselves, which would be marked with the voter's name. The voter would also receive an identical copy of the ballot to take home. All the results would be posted to the internet, for each individual to check.

You wouldn't be able to prove that your real votes were counted properly. But you would be able to at least prove that the system works. It would still be possible to cheat the system; nothing's perfect. But I, for one, would have far greater confidence in our elections if this was part of them.

Death Penalty Analysis: Argument From Justice, Retribution, or Punishment

It is argued that some people simply deserve to die; that, given what they've done, their continuing to live is inherently unjust, regardless of other considerations. This is related to the argument that the victims' survivors deserve retribution. Let's assume that this is so, and that our goal is to minimize the injustice in the universe. Sentencing such people to life in prison creates injustice, and is therefore bad.

The counter-point to this is that executing an innocent person is also unjust. All it does is create a new victim, and do nothing for the survivors of the original. So the injustice created by an avoided-but-deserved execution is one value. The injustice created by executing an innocent is another value. Now since we are trying to minimize injustice, we must ask: how many avoided executions does it take before that injustice exceeds the injustice of executing one innocent?

And remember, we're not talking about killing criminals to save money, or for public safety. We're talking about killing them as an end unto itself. Would you, personally, be willing to kill one innocent person if it meant you also got to kill ten jailed Hitlers? A hundred? A thousand? From a perspective of justice, how many deserved executions is an innocent life worth?

My answer is infinity. I don't care how many horrible criminals I have to leave living in a hole forever; executing one innocent person is worse. By the argument of justice, as long as there is any chance that you might ever execute an innocent person, that potential injustice outweighs all the possible injustice of leaving actual criminals alive.

Tolkien asked, "Some that die deserve life; can you give it to them?" Obviously the answer is no. What we can do is not add to their number. That, at least, is just.

Let me know when the odds of a wrongful execution reach zero. Otherwise, argument from justice works against the death penalty.

Fraternal Order of Police Candidate Survey

Earlier this year I considered running for Nashville Metro Council. I took out the signature forms, but concluded I couldn't commit the time to do the job effectively, so I won't be turning them back in.

However, I have been put on all sorts of interesting mailing lists. I thought I'd share the results with you. This one is from the Fraternal Order of Police, Andrew Jackson Lodge No. 5.

• Would you support the pay study plan and increase Metro Nashville Police Officers pay above mid range?
• Would you support current employees keeping their earned pensions?
• Would you support the current pension plan and allow this plant to remain in effect for current officers?
• Would you support additional ZONE officers?
• What is your position regarding body cameras for police officers? What are your recommendations for funding such a program? How would you rationalize rules for their use, keeping in mind Tennessee privacy laws, children and use inside of homes?
• Do you support the relocation of the Police headquarters? The Metro Police Academy is in need of an indoor firing range and repairs made to the running track and runway due to multiple pot holes. Do you support allocating money for the Metro Police Academy?
• What is your assessment on the current police administration?
• Would you support a police chief being promoted from within the department?
• Would you support an ordinance changing the civil service rules to include a Police Officers' Bill of Rights?
• Will you promise not to make pledges or commitments that will limit Metro's ability to meet obligations to employees?
• Will meet with the FOP board members on a regular basis?
• Have you or will you sign a no tax pledge?

A lot of these questions make sense. They're concerned about officers' pay, pensions, and resources. I am interested in what their "right" answers are regarding body cameras, and what would be included in a Police Officers' Bill of Rights. I'm assuming it's similar to this, which all sounds perfectly reasonable. Would that civilians had some of those rights!

Now, what's the deal with a no-tax pledge? That seems to have zero to do with police work, except insofar as it makes it impossible to run a functional government, in many cases. In theory, that should mean they're against a no-tax pledge. But the Republican Party has often convinced people to vote against their own best interests; has that happened here? I can't tell.