Murder in the first

As you probably know by now, mercy was denied, and Stanley Tookie Williams was murdered by the state of California at 12:35 am this morning. In other news, none of his alleged victims came back to life and there are no reports of murders having been deterred in the state of California.

Here are some things I don’t care about today.

I don’t care whether Tookie repented, deep down in his heart, or whether he was trying to put on a good face in order to save his skin.

I don’t care whether Tookie’s trial was fair or not.

I don’t care about whether Tookie was innocent or guilty of the crimes for which he was slaughtered.

I don’t care about whether Tookie was innocent or guilty of a bunch of other crimes that he has or hasn’t copped to.

I don’t give a damn about what kind of message mercy would have sent. Or what kind of message slaughtering him did send.

And if I hear one more goddamned professional blowhard cheerfully pontificating about the calculated electoral pandering that informed Governor Schwarzenegger’s deliberations over a man’s life, as if there were nothing unexpected or wrong with snuffing out a human life in order to make sure that your political base stays behind you, I am going to scream. And cry.

Regardless of the fickle electoral preferences of California Republicans, the messages that the State’s Harrow might inscribe into a man’s body for the edification of unnamed others, his guilt or innocence, the adequacy of his trial, or the inner state of his soul, Tookie would have posed no more credible threat to anyone alive in San Quentin without the possibility of parole than he does now that he has been poisoned to death. I wouldn’t presume to know whether he, or anyone in this vale of tears, deserved to live or deserved to die. What could give me the right to say? More to the point, what ever gave the hangmen and politicians of the state of California the right to say?

I do know that if he did deserve to die, we would have no right to give him what he deserves. Blood vengeance is not ours to dispense. Would you have sanctioned the premeditated murder if one of the other inmates managed to break out and slit Tookie’s throat in the middle of the night, just ’cause he deserved to die? If so, why? If not, what makes the relevant moral difference between the criminal and the State’s hangman?

The death penalty is the definitive expression of what the power of the imperium means. It means that the State claims a special right to control you, to beat you, to tie you down, and to kill you, at its own pleasure and discretion, a claim that would be universally met with indignation and horror if it came from anyone else, if it weren’t covered with the robes and the crown. The death penalty — an act of State-sanctioned murder whether the victim is good or evil, innocent or guilty, redeemed or sinful — shows the State in all of its power and all of its glory, in the mirror that flatters not.

engraving: a ghastly skeleton, robed and crowned, holds a sceptre and a polished glass with the words, THE MIRROR THAT FLATTERS NOT

The State is Death. That is its power. That is its justice. That is its law.

At 12:35 a.m., it claimed Tookie Williams. It must be stopped before it claims even one more life.

Further reading:

12 replies to Murder in the first Use a feed to Follow replies to this article

  1. Rad Geek

    Otto, since I reject, root and branch, the notion that violence can rightly be used for the purpose of vengeance or punishment, it follows that I don’t think that vengeance or punishment could justify incarcerating criminals. It doesn’t follow from that that no-one should be incarcerated, since incarceration may be a legitimate act of self-defense. Whether that means prison, exile, house arrest, or some other form of restraint is something that I don’t have firm opinions on, and that I think would need to be worked out on a case-by-case basis. I also don’t think, incidentally, that it can countenance any form of corporal punishment at all. (What would justify beating or mutilating someone if, ex hypothesi, the violence serves no defensive purpose?)

    What I mentioned here doesn’t depend on that, though; it just depends on the idea that the State has no moral claim to, and should not be trusted with, the authority to deliberately kill people, with premeditation and malice aforethought, when those people do not pose an active threat to anyone at all (or could be made harmless without killing them). The idea here is that if there is any limit at all on what a person can rightly do to a criminal in seeking to inflict punishment, above and beyond the level of violence necessary for self-defense, then premeditated murder is certainly beyond that limit. (If it’s not, what the hell is?) Most people, I think, have enough humanity in them to realize that there must indeed be some limit; that is, for example, why most people now look on the medieval and early modern use of public torture and mutilation with horror, even if the victims were rotten people and were in fact guilty of the most infamous accusations made against them. But as I’ve suggested before, it’s hard to find any principled grounds on which you could oppose public torture and mutilation for punishment while endorsing death; the idea that humane executions are somehow better than the cat’s paw or branding with hot irons is a bunch of sentimental rot that has nothing to do with the condemned and everything to do with the squeamishness of the audience, who I’m sure much prefer bloodless poisoning or certain electrocution to visible lacerations and burns.

    As for vigilante justice, I agree with you that there’s nothing wrong with it if justice is indeed being done, and so that if the State’s hangman has a right to kill Tookie, then inmates and guards would have just as much of a right to slit his throat or shoot him in the head in the middle of the night. But of course I think that the right step to take from here is modus tollens, not modus ponens.

    (As for what powers minarchists might think the State ought to hold in its talons, well, Jesus, who cares?)

  2. Otto Kerner

    You know, I used to really agree strongly with the logic you use here, and I still can’t refute it. But it no longer seems completely satisfactory. I think that this argument could be applied almost as well to any form of punishment or penalty. For instance, should the state have the right to put people in prison? Prison is itself a brutal invasion of a person’s life. However, if we draw this to its logical conclusion, to we really conclude that a convicted murderer of four innocent people should not only not be killed but should not be imprisoned, either? Is any criminal justice system possible?

    This is precisely the one thing about which we cannot simply say “Well, the government should stay out of it”, if we are minarchists. As it happens, I am not a minarchist, but this doesn’t really avoid the issue, because, even in anarchy, we must have some kind of legal system to try to protect the weak from the strong, etc.

    I do believe that a stateless libertarian society would have a penal system that would be, on the whole, much more humane than what currently exists. However, I tend to think that it might involve a somewhat higher level of corporal punishment, in exchange for a vastly reduced use of incarceration as punishment. It’s not obvious to me that such a system would rule out the death penalty.

    P.S. – As for your hypothetical, “Would you have sanctioned the premeditated murder if one of the other inmates managed to break out and slit Tookie’s throat in the middle of the night, just ’cause he deserved to die?” If we posit that Williams should have been executed, then I certainly don’t care who the executioner is. This corresponds to a hypothetical like, “If I take a TV from someone, but it turns out that he had himself stolen it from somebody else beforehand, is that theft?” (answer: no, it’s not a crime, but I am required to give the TV back to the original owner.)

  3. Alex Gregory


    Suppose that the death penalty did actually deter crime – in fact, suppose for every person we execute, we prevent two murders (unlikely!): In this case, what “right” does the state have to leave people to death by giving up capital punishment?

  4. Rad Geek

    Well, everyone has a prima facie obligation not to murder other people even if they can get good results from it. There are lots of ways to deter murders, and we all have obligations to try to do so through means that don’t involve murdering someone else as an “acceptable loss.”

    In the opening of Foucault’s Discipline and Punish, he describes a public execution from 1757:

    On 2 March 1757 Damiens the regicide was condemned to make the amende honorable before the main door of the Church of Paris, where he was to be taken and conveyed in a cart, wearing nothing but a shirt, holding a torch of burning wax weighing two pounds; then, in the said cart, to the Place de Gr�ve, where, on a scaffold that will be erected there, the flesh will be torn from his breasts, arms, thighs, and calves with red-hot pincers, his right hand, holding the knife with which he committed the said parricide, burnt with sulphur, and, on those places where the flesh will be torn away, poured molten lead, boiling oil, burning resin, wax and sulphur melted together and then his body drawn and quartered by four horses and his limbs and body consumed by fire, reduced to ashes and his ashes thrown to the winds (Pi�ces originales …, 372-4).

    The execution actually went rather badly, and was even more gruesome because ineptly carried out.

    If you found out that you could prevent three murders with a ghasty public spectacle like that, as opposed to only two by quietly poisoning the condemned, would you think that justified adding the public display, pincers, burning sulphor and molten lead, drawing and quartering, etc.? If so, God, why? If not, doesn’t that entail that there are some limits on how much you can do to a person in order to deter unrelated others from doing evil?

  5. Alex Gregory

    Point well made.

    I guess I just think that the limits to what you can do to people are slightly higher than you do if the consequences are good enough. That is, I think saying that people have “the right to life” is misleading since it suggests that no matter what the consequences, no-one should be killed — and that looks wrong to me. Still, we’re just down the consequentialist vs. non-consequentialist road, which is perhaps a debate best kept seperate.

    Of course, in the case of capital punishment its all a bit irrelevant anyway due to the fact that the above hypothetical doesn’t hold.

  6. T. J. Madison

    Tookie would have posed no more credible threat to anyone alive in San Quentin without the possibility of parole than he does now that he has been poisoned to death.

    Alive, Tookie represented an ongoing threat to the taxpayers of California who were forced to shell out tens of thousands of dollars a year to keep him confined.

  7. Rad Geek

    Alive, Tookie represented an ongoing threat to the taxpayers of California who were forced to shell out tens of thousands of dollars a year to keep him confined.

    What I said before.

    Incidentally, by some estimates, there are over 530,000 drug war prisoners in state and federal prisons. At an average annual cost of $30,000 / year for housing prisoners, that means that they are an ongoing threat to state and federal taxpayers who are forced to shell out about US$16,000,000,000 a year to keep them confined. So how about we solve the problem by shooting them all in their cells?

    Recipients of Social Security represent an ongoing threat to American taxpayers who are forced to shell out over US$600,000,000,000 a year to provide them an old-age or disability pension. So why not respond to the threat by shooting people once they draw their first Social Security check?

    Hell, Tookie’s imprisonment for 24 years and exhausitve appeals process and then elaborate poisoning was funded by the extraction of tens of thousands of dollars every year from taxpayers. Why not just drop him off a boat in the middle of the Pacific as soon as he was convicted?

    This is not a serious argument in favor of the death penalty. You’ve offered an argument against stealing money (via taxation) to pay for criminal justice. I think that argument’s perfectly right, but has absolutly nothing to do with whether or not you should deliberately kill prisoners in addition to incarcerating them for decades.

  8. Otto Kerner

    Dear Radgeek,

    I appreciate your response. However, I think there are still issues here that you haven’t yet dealt with completely (Incidentally, I do care what monarchists think about things, since I regard them as comrades-in-arms, but, since you evidently don’t, I won’t return to that point).

    I think I can agree with you in categorically rejecting violence as a form of revenge or punishment, although I haven’t put a lot of thought into any hard cases which might crop up to test that claim. However, all the means we have at our disposal to deal with murderers are violent, albeit not in equal measure (perhaps: this assumes that one can weigh the severity of different forms of violence against each other, which is a dubious proposition). There are many ways to restrain someone, one of which is prison; but let’s not forget that imprisoning someone, taking away his freedom, is a brutally violent act. As an alternative, you could restrain someone by killing him, by cutting off his hands, etc. — these are all extremely violent things to do, but it doesn’t follow that they cannot be justified except as revenge or punishment.

    And so, it seems a bit odd that you state that your arguments relies exclusively on the fact that the state has no right to kill people, while at the same time linking to a post where say that you are okay with the state putting people in prison. You argue that “it’s to find any principled grounds on which you could oppose public torture and mutilation for punishment while endorsing death”, but what are principled grounds on which you can support one form of violence used to restrain a criminal while endorsing another? You think that “torture is horrible, but killing is worse”; I’m not sure I agree with that. You think that prison is within the pale; others might disagree. You say, “everyone has a prima facie obligation not to murder other people even if they can get good results from it”, but couldn’t someone just as fairly say that everyone has a prima facie obligation not to kidnap other people, even if they can get good results from it? Doesn’t this come down to a purely subjective judgment of where “the limit” is? I might say that no one should ever be tortured with red-hot irons; you might say that no one should ever be deliberately killed; a third person might say that no one should ever be imprisoned. These are defensible opinions, but I’m not sure what makes any of them more objective than the others.

    If a private citizen, rather than the state, captured Stanley Tookie Williams and held him captive in a basement somewhere for 25 years, perhaps periodically sending someone down to rape him, would that be okay?

    While I have no interest in seeing a criminal punished or being subjected to revenge, I’m not very comfortable with the idea of intervening in every case to stop a victim who wants what looks like revenge to me. If other people want revenge, I’m not sure how that’s any of my business; if someone has been truly, terribly wronged, who am I to stand up and tell him how he should respond to that? Anyway, you and I both believe, I would imagine, in subjective value. Now, what I want is a justice system based on restitution. Normally, one thinks of this in terms of cash payments, but, if we accept that value is subjective, how can we say that a dollar is a valid form of restitution but revenge is not; that one is valuable while the other is pointless? Suppose that Dr. A commits a crime against Mr. B, and B gives him the option of making up for it either with X number of dollars or with Y number of lashes. If A prefers the latter and B is neutral, is there something wrong with this agreement?

    I don’ think that you’e really answered T. J. Madison’s question sufficiently, although he didn’t phrase it very clearly in the first place (no offense, T.J.; I know you were aiming for pith). The difference between Tookie Williams and a drug offender or a Social Security recipient is that, in those other cases, we can solve the problem just by not doing anything: by not imprisoning the drug offenders and by not sending Social Security to retirees (while hopefully working out something else voluntary so that they don’t wind up bad off). This is not an option with Mr. Williams: we have to do something to keep him off the streets where the innocent people are, so any suggestion to not kill him appears to be a suggestion to continue heisting the taxpayers for tens of thousands of dollars to support him in prison, unless you have some other kind of suggestion. This problem doesn’t go away in a stateless society, either; other than the government, who is ever going to want to put down the cash to keep murderers in prison? (Maybe some kind of charitable organization would; that’s possible).

  9. Sergio Mendez

    I have 2 questions for Otto Kerner:

    1- It is open to debate if certain crimes demand that people die for commiting them or not. I am not sure where to draw the line with precision. I can think of criminals (say, the obvious and typicall example of tyrants like the nazis or stalinists in Rusia) that deserve to die – at least in my humble opinion-. But I also think if we put this people to die – whoever runs the penitenciary system, the state or a “charitable organization”- there is a problem that remains…What we do with the persons of which we are not certain of their guilt? I will add…What happens if the system fails, even if it is only ONE time? It is justified risking the life of an innocent human being just to seek “justice”, which is nothing else than revenge disguised in finer clothes?

    2- You said you like justice system based on restitution…So, how one restitute the life of a person that was murdered, by killing the murderer? Does executing the murderer actually makes the person that died come back to life?

  10. Otto Kerner


    1) Like Charles, I don’t have a fully worked out theory of criminal justice. It seems to that the question of wrongfully executing an innocent person essentially boils down to the speed and irreversibility of the death penalty. It is also wrong to imprison someone who is innocent, but, at least, if you find out 10 years later that the person convicted was innocent, you can let him go without him having to serve his whole sentence. Similarly, a cash fine can be refunded if the verdict changes.

    As a purely procedural argument (i.e. that it might be okay to execute someone if you were certain he was guilty, but one can never be fully certain in the real world, so it’s too dangerous to give people irreversible punishments) this makes a lot of sense, and I think it’s a good point.

    2) Except under some sort of weird supernatural theory, it is impossible to make restitution directly to someone who is already dead. This is true of any kind of restitution. Typically, proponents of restitution (including myself) argue that the right to receive restitution should pass to the victim’s heirs, which would usually be his or her next of kin. Killing the murderer won’t make the victim come back to life, but the victim’s relatives might argue that it would make them feel better. You and I might disagree with that idea, but, since value is subjective, we really have no objective way to prove it.

  11. Rad Geek


    Killing the murderer won’t make the victim come back to life, but the victim’s relatives might argue that it would make them feel better.

    There are a couple of immediate problems with this line of argument.

    1. If you think that the right to life is inalienable then the criminal’s life is not something that can be expropriated as restitution, no matter what value the relatives might claim they derive from it.

    2. If you’re not an inalienabilist, this line of argument would commit you to holding, a fortiori, that the victim’s family can do anything at all to the murderer that would please them up to the point of killing him or her. E.g., suppose that the victims’ families thought it would make them feel better to rape Tookie Williams, or to cut off his arms and legs, or to rake him with the cat’s paw twice weekly and rub brine on the wounds. Would you consider that just restitution? If not, what would make it unacceptable while killing him for their pleasure is acceptable?

    You and I might disagree with that idea, but, since value is subjective, we really have no objective way to prove it.

    I think this is wrong for two reasons.

    First, because value isn’t subjective; it’s just that subjective evaluation is what matters for the purpose of economic analysis. (So, for example, it is quite possible to rationally criticize the victims’ family for getting off on the death of someone they hate, even if that hatred is perfectly rational. Reason being that it’s wrong to glory in death and take pleasure from killing. That may be understandable and even natural, but that doesn’t make it right.)

    Second, because subjective evaluation could not justly be the sole basis for determining the amount and kind of restitution that is owed. Suppose, for example, that I’m being careless and I knock a baseball through someone’s ordinary glass window. Fair enough; I owe restitution, since (1) I broke her stuff, and (2) I was being negligent. But now suppose that — unbeknownst to me — she values that glass window at $10,000,000,000, for sentimental reasons. Do I owe her $10,000,000,000 in restitution? Or suppose that she wouldn’t sell the window for all the world, and the only thing that would even begin to make her feel better is, well, killing me by electrocution. Does that justify sending me to the chair? Broadly speaking, if you think that there is a principle of proportionality in the enforcement of justice, then you’re probably going to want to back off of strictly subjectivist accounts. Not because you’re logically required to — you could consistently think that justice has to be proportional to the damage, but that it’s only the subjective evaluation of the victim that determines the damage it has to be proportional to. But it’s hard to reconcile all the consequences of that claim with the reasons that people usually have for thinking that a principle of proportionality is needed.

  12. Roderick T. Long

    Otto, it’s true that most forms of restraining criminals are violent, but I would want to distinguish between violence as a necessary (and proportional) means to restrain an aggressor, and additional violence inflicted once the aggressor is in one’s power. See my arguments here:

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