Thursday: Hili dialogue

October 27, 2022 • 6:30 am

Welcome to Thursday, October 27, 2022. Tomorrow I leave for California to see friends and participate in the Stanford Academic Freedom Conference, and will be back in about eight days. Posting will be very light until then, so bear with me. As always, I do my best.

It’s National Potato Day!

It’s also American Beer Day, National Potato Day, Sylvia Plath Day (she was born on this day in 1932, committing suicide in 1963), National Black Cat Day (the first reader who sends a photo of their black cat will have it featured below), Navy Day, and World Day for Audiovisual Heritage.

And here’s our first black cat, from reader Reese. The cat is named after my favorite bourbon:

Probably too late; I’m on Texas time, but here”s Woodford Reserve White, a black cat, assisting at the NYTimes Spelling Bee.

Readers are invited to comment on notable events, births, and deaths on this day by consulting the October 27 Wikipedia page.

Da Nooz:

*I’d always thought that American jury verdicts had to be unanimous for a judgment of “guilty” or “not guilty” to be rendered; otherwise you’d have a hung jury and a mistrial. It turns out that while this is true in 48 of 50 statess, it’s not in Louisiana or Oregon, which allow split-jury verdicts. In both of these states, a 10-2 vote counts as either a conviction or exoneration.

However, as the Washington Post reports, this practice is no longer legal:

The U.S. Supreme Court declared split-jury verdicts unconstitutional in 2020, in a ruling known as Ramosv. Louisiana.

The Supreme Court ruling left it up to Oregon and Louisiana to figure out what to do with the hundreds of people already in prison for such convictions.

Now it seems the right thing to do to let those prisoners go free who were convicted by split verdicts, doesn’t it? But not to everyone!

On Oct. 21, Louisiana’s Supreme Court ruled against vacating those convictions, leaving the door open for the state legislature to take action. Oregon’s Supreme Court is similarly poised to rule on the issue, in an appeal of Watkins’s conviction that could impact an estimated 250 to 300 other inmates in the state.

If the state Supreme Court sides with Watkins, it would provide the path forward that prisoners and their advocates have fought for — an opportunity to seek new outcomes through the appeals process. Crime victims and their supporters, however, say such defendants should not always get another chance.

. . . If no branch of the government takes action, hundreds of people will remain behind bars for crimes that at least one juror did not believe they committed.

I guess the state legislatures can rule against those convicted under a practice now deemed unconstitutional, but it just seems WRONG.  If you read further, you find that the practice of allowing split votes derives from cases involving, yes, Jews and blacks, as a way to ensure that they got punished even without unanimity.  But the drive for retribution is strong:

Some crime victims and their advocates have opposed new appeals for people convicted in split verdicts, testifying against legislation that would have allowed them. Lynae Wever said the man who sexually abused her and her sister was convicted on an 11-1 verdict. She begged lawmakers not to allow a way for him to appeal his case.

“I speak on behalf of all the victims going through what I am forced to go through when I say that sexual abuse in any degree should not be given any opportunity for a retrial,” Wever said.

Louisiana has over 1,500 prisoners in jail under split verdicts, and is going forward with incarcerating more even as the State Supreme Court considers what to do.

*Climate change is a “tragedy of the commons” scenario: it’s to each country’s benefit to keep pumping greenhouse gases into the air, but also to their benefit if all other countries reduce emissions.  It’s no surprise, then, that only a fraction of the countries that pledged to deal with problem have done so.

Countries around the world are failing to live up to their commitments to fight climate change, pointing Earth toward a future marked by more intense flooding, wildfires, drought, heat waves and species extinction, according to a report issued Wednesday by the United Nations.

Just 26 of 193 countries that agreed last year to step up their climate actions have followed through with more ambitious plans. The world’s top two polluters, China and the United States, have taken some action but have not pledged more this year, and climate negotiations between the two have been frozen for months.

Without drastic reductions in greenhouse gas emissions, the report said, the planet is on track to warm by an average of 2.1 to 2.9 degrees Celsius, compared with preindustrial levels, by 2100.

That’s far higher than the goal of 1.5 degrees Celsius (2.7 degrees Fahrenheit) set by the landmark Paris agreement in 2015, and it crosses the threshold beyond which scientists say the likelihood of catastrophic climate impacts significantly increases.

With each fraction of a degree of warming, tens of millions more people worldwide would be exposed to life-threatening heat waves, food and water scarcity, and coastal flooding while millions more mammals, insects, birds and plants would disappear.

THe U.S. and China should be ashamed of ourselves, because we’ll wreak the most havoc on future generations.  These emission pledges are like New Year’s resolutions: people have good intentions but somehow never get around to enacting them.  Well, we’ll all be dead when the merde frappe le ventilateur, but there’s no doubt that after the penguins and polar bears go, then other species will be next, with humanity all moving towards the Poles.

*Ruth Bader Ginsburg is getting her own stamp! And it’s a “forever stamp,” too, which means you can use it in the future, on first class letters no matter how high the postal rates increase.

The new stamp shows Ginsburg wearing the white beaded collar with an intricate geometric pattern that she said came from Cape Town, South Africa.

Ginsburg’s “dissent collar” — a darkly formal and hard-edged version signaling her opposition on a key issue — became famous as the high court split over divisive issues, but the simpler white collar the stamp depicts was the justice’s favorite.

As it announced the new stamp, the Postal Service noted Ginsburg’s legacy of fighting for equal rights, including her “important majority opinions advancing equality and strong dissents on socially controversial rulings.”

The Ginsburg stamp will be released in 2023 — 30 years after she was nominated to the Supreme Court by former President Bill Clinton. It features art by Michael J. Deas, a frequent stamp artist, and is based on a photograph by Philip Bermingham, according to the Postal Service.

Ginsburg will be the first Supreme Court justice to get a solo stamp issue since 2003, when Thurgood Marshall was honored. U.S. stamps have featured a number of other justices over the years, including William Brennan Jr. and Louis Brandies — part of a four-justice issue in 2009 — and Hugo Black and Oliver Wendall Holmes.

Here’s her “dissent collar”, one of three donated to the Smithsonian Institution.

(From the NYT): Justice Ginsburg’s “dissent” collar, which she wore on days that she gave powerful and pointed opinions at odds with the Supreme Court’s majority.Credit… Jaclyn Nash, via the National Museum of American History

*The U.S. has officially declared the Emperor Penguin (Aptenodytes forsteri) an endangered species. “How can that be?”, you ask “This species is not found in America.” I don’t know for sure, but this excerpt from the US Fish and Wildlife Service implies that since it inhabits Antarctia, and no country (despite the claims of some) really “owns” any of Antarctica, it gives the U.S. wider ambit to take conservation measures:

The U.S. Fish and Wildlife Service has finalized protections for the emperor penguin, a flightless seabird endemic to Antarctica, under the Endangered Species Act (ESA). The emperor penguin is listed as a threatened species and includes a section 4(d) rule that tailors protections for the species. The impact of climate change on sea-ice habitat, where the species spends the majority of its life, is the primary threat to the penguin.

. . . To allow for further conservation of the species, the emperor penguin listing includes a section 4(d) rule that streamlines ESA compliance by providing exceptions for activities permitted by the National Science Foundation under the Antarctic Conservation Act.

The final rule to list the emperor penguin as threatened under the ESA will publish in the Federal Register Oct. 26, 2022, and will be effective 30 days after publication. More information on the final rule is available at by searching under docket number FWS-HQ-ES-2021-0043.

How endangered is it? Let’s put it this way: if you were an Emperor Penguin, you’d better start worrying:

Emperor penguins need sea ice to form breeding colonies, forage for food, and avoid predation. As carbon dioxide emissions rise, the Earth’s temperature will continue to increase, and the related reduction of sea ice could affect a variety of species, including emperor penguins, who rely on the ice for survival.

While emperor penguin populations appear to be currently stable, the Service has determined the species is in danger of extinction in the foreseeable future in a significant portion of its range. There are approximately 61 breeding colonies along the coastline of Antarctica, and the species’ population size is estimated to be between 270,000 – 280,000 breeding pairs or 625,000 – 650,000 individual birds.

However, according to the best available science, by 2050 their global population size will likely decrease by 26 percent (to approximately 185,000 breeding pairs) to 47 percent (to approximately 132,500 breeding pairs) under low and high carbon emissions scenarios, respectively.

*In Bret Stephens’s NYT column, “Thank Ye very much,” “Ye” is Kanye West’s new name, not an archaic form of “you.” It is, of course, a criticism of Kanye’s anti-Semitic remarks, remarks that got him roundly criticized but also cost him a huge chunk of his income (I read somewhere that “Ye”-branded Adidas products were 10% of the company’s sales.) But it’s also an indictment of the press for not covering anti-Semitism. A longish excerpt:

With a few outbursts in a few days — you threatened in a tweet this month to go “death con 3” on “JEWISH PEOPLE” and it’s been downhill from there — you’ve probably done more to raise public awareness about the persistence, prevalence and nature of antisemitism than any other recent event.

It’s remarkable how long it took us to get here. For 2020, the F.B.I. reports that Jews, who constitute about 2.4 percent of the total adult population in the United States, were on the receiving end of 54.9 percent of all religiously motivated hate crimes. On many nights in New York City, Hasidic or Orthodox Jews are being shoved, harangued and beaten.

So far, this has been one of the most underreported stories in the country — itself a telling indicator in an era that is otherwise hyper-attuned to prejudice and hate.

At times, the reporting has all but accused Jews of bringing the violence on themselves, with lengthy stories about allegedly pushy Jewish neighbors or rapacious Jewish landlords. At other times — such as after the attack in January on a Texas synagogue by a British Muslim man who had traveled 4,800 miles to get there — reporters seem to have gone out of their way to find non-antisemitic motives for nakedly antisemitic attacks.

More often, attacks on Jews are treated as regrettable yet somehow understandable expressions of anger at Israel. In May 2021, Jewish diners at a sushi restaurant in Los Angeles were physically assaulted by a member of a group that, according to a witness, was chanting “Death to Jews” and “Free Palestine.” A KABC report of the event was headlined, in part: “Mideast tensions lead to L.A. fight.”

To suggest that “Mideast tensions” led to a “fight” is to obscure both the nature and motive of the assault. Imagine the absurdity of a headline that read: “High Levels of Crime in Minority Neighborhood Lead Police Officer to Kneel on Man’s Neck for Eight Minutes.”

. . .But it’s worth pondering the extent to which, in American culture today, Jews are excluded from inclusion and included in the excluded. That is, the Jewish people’s status as an oft-persecuted minority goes increasingly unrecognized, while the Jewish people’s position as a legitimate target for contempt and ostracism is becoming increasingly accepted.

Take Hollywood, where the new Academy Museum of Motion Pictures opened its doors last year with a panel dedicated to “Creating a More Inclusive Museum.” Yet, as The Times’s Adam Nagourney reported in March, “Through dozens of exhibits and rooms, there is barely a mention of Harry and Jack Warner, Adolph Zukor, Samuel Goldwyn or Louis B. Mayer” — the Jews who essentially founded the modern movie industry. (After an outcry, the museum now plans a permanent exhibition for them.)

It goes on, with more examples given, but who cares about anti-Semitism in America these days? The column is written as a letter addressed to “Ye” and ends by saying that if he were honest, he’d admit that he spoke “for more people than many Americans would have cared to admit.”

*I voted by mail yesterday—a great convenience. Don’t forget to join me! I think that voting should be obligatory in the U.S., with failure to do so punished in some way. This will ensure that (except for the damn electoral college), every Amercan gets a say.

Meanwhile in Dobrzyn, Hili is helping with the gardening again:

A: Leave this forsythia alone.
Hili: I’m just checking whether is has a thick bark.
In Polish:
Ja: Zostaw w spokoju tą forsycję.
Hili: Sprawdzam tylko, czy ma grubą korę.
And here’s baby Kulka, up in the trees again.


From Pradeep, posted Tuesday and captioned “Metro in Tehran today”. The picture speaks volumes:

From Pet Jokes & Puns via Merilee, Larry the Cat speaks out:

From Jesus of the Day. I may have posted this before, and am not at all sure it’s real. An obliging reader might check. If it’s real, Keith probably eats peanut butter sandwiches for lunch!

The Tweet of God, addressed to all those who purport to hear Him, and to those who speak in tongues:

More Iranian student protests documented by Masih:

From Malcolm: A human white blood cell does its thing. Great video!

From Simon: New PM gets a slap from Labour:

From Barry, who says “Man, that squirrel is going to be SO pissed when he finds out what happened to his stash!”  I have a feeling it was more than one squirrel. I also have a feeling I’ve posted this before, but so what?

From the Auschwitz Memorial:

Tweets from Matthew: “Savate” is French kickboxing, and this video was made using photos and AI to smooth and colorize an old black and white film.

The Iranians are contesting their regime in droves!

Matthew and I love a good murmuration!

58 thoughts on “Thursday: Hili dialogue

  1. Is the white blood cell video in real-time or faster or slower than real-time? For some reason, I thought that things moved much faster in our bodies. A nice video in any case.

    1. Nature correction refers to it as a time-lapse movie.
      In Giles Cory and Anne Ridley’s article “Cell motility: Braking WAVES” (Nature 418, 732–733; 2002), the wrong attribution appeared for the time-lapse film of a neutrophil chasing a bacterium, provided as a spectacular example of cell motility. The movie was made by the late David Rogers at Vanderbilt University, Nashville, Tennessee (see
      Some more background on the video is at

  2. Thanks for letting me know that it is Thursday.

    I woke up thinking it was Friday and continuing to do so would certainly have resulted in things getting out of joint. Now I know.


    I didn’t know they had book returns with I’ across the top. The book return at the local library doesn’t have it, so I shall not ask them if they keep a Keith inside the book drop.

  3. May I ask; are the motions of murmurations entirely random or are they directed in some fashion and if so, to what end? Are they going somewhere? The few I’ve seen appeared to be more like a get-together, a meet up of the flock before everyone settles into the trees for the night.

    1. I believe I have read somewhere that one possible reason for murmurations is a predator response, that they are more common when a predator is nearby (sorry I cannot recall the source). I do know Dawkins talks about programming a computer simulation that does a good mimic of the behavior. It’s something about reacting to the movement of the bird next to you, but I don’t recall the details. I think it’s in his new book on flight, which I have but have yet to read. I’m not certain it’s fully been worked out, but I’ve seen what you describe, what looks like everyone coming together prior to roosting. There are massive bands of starlings that fly across my county in Missouri, often taking several minutes to pass. I have recorded just a brief 3 minutes or so of one band flying over my house. I have no idea how long it was flying before I noticed, and it was not the only one. I’m not sure if those count as murmurations, since they are more spread out and seemingly directional (typically East to West and West to East) but they do some of the same acrobatics in the process.

  4. “Savate” is French kickboxing …

    Giving rise to the bawdy couplet:

    The French, they are a funny race
    They fight with their feet and
    [do something else that starts with an “f”] with their face

    The first line of that couplet served as the title for Preston Sturges’s final film.

  5. K.West is a mentally ill person and clearly has the wrong pharmacological help or none at all. I do not understand why the media talk about him as if he were compos mentis, he is not. He would probably be quite unpleasant even with the right dosage, but still…

    1. Marina – Ref compos mentis, some while ago I learned that nincompoop is a very old contraction of non compos mentis, which I think is marvelous. (I had assumed that it originated in the ’30s because of mainly remembering it from Three Stooges / Laurel & Hardy shorts).

      1. Thanks for that. I first heard “nincompoop” from Mr. Howard, Mr. Fine, & Mr. Howard and figured it to be of Yiddish origin.

    2. > I do not understand why the media talk about him as if he were compos mentis

      Social media are toxic and exacerbate the worst parts of human nature. I wonder what kind of coverage traditional media would have given him before the social media era.

      There is something to be said for giving a voice to the mentally ill / neuroatypical.

  6. Notable science birthdays:

    1763, William Maclure, “father of American geology”

    1946, Terry “T.J.” Hart, astronaut, STS 41C

    1951, Carlos Frenk, cosmologist

    1953, Michael A. Baker, astronaut, STS 43, 52, 68, 81

  7. Ms Sharlot Hall, birthed this day y1870, and colleague of
    Ms Charloltte Perkins Gilman, gives us thus … … ” With a Box of Apples ”

    ” Suppose a modern Eve would come
    And tempt you with an apple,
    Say just about the size of these ?
    Would you temptation grapple
    And manfully declare: ‘ I won’t ? ‘
    Or, would you say: ‘ Well, I
    Think since you’ve picked them
    They’d be best in dumplings or in a pie.
    And, let us ask the serpent in
    To share with us at dinner.
    A de’il with taste for fruit like that
    Can’t be a hopeless sinner. ‘ ”

    — Ms Hall’s freethought ditty


    1. Best quote: “and if you can delete this from your mobile phone, delete it, so you won’t have the temptation in hand.” 😭

    2. … I thought you had to be dead for 10yrs before being able to be on a stamp.

      Well, since you also brought up the Pope, that would be five years longer than the deceased must wait to begin the beatification process. 🙂

  8. Regarding the murmuration at Ripon:

    Each bird carries the spirit of an original Republican.
    Together they form the spirit of Lincoln.
    Their murmur is an angry shout.

  9. The Lancet article, which the paywalled New York Times article on climate change cites is here:

    The Times is misleading in criticizing the United States and China in the same breath as the two biggest “polluters”. Emissions from fuel burining in both the U.S. and Europe have shown a downward trend for at least 10 years due to shift of electricity generation from coal to natural gas and, particularly in Europe, to outsourcing of manufacturing (and associated jobs and economic activity) to China. China, on the other hand, has increased its CO2 emissions every year and plans to continue to do so until at least 2050 when it hopes to peak emissions, not reduce them to zero as many western countries have foolishly committed to. China’s emissions growth is no longer just in their role as our smoky workshop but increasingly serves their own domestic aspirations for abundant energy. China’s per capita emissions have now reached the OECD average. China is clearly playing a different game from what the rest of the world is pretending to.

    Collective action problems are intractable once it becomes clear that at least one actor cheats with impunity. Shaming people won’t work. A fisherman will not be shamed into dumping his catch back into the sea when he watches a competing boat hauling those fish out of the water.

    I have no idea, and neither do you or any of your readers, if continued mild warming will tip over into catastrophic feedbacks later this century. Predictions aren’t facts until they happen. What I do know is no Western country will allow its government to make its citizens poorer by making energy scarce, unreliable, and expensive. No shame in that.

    Note: The Lancet article’s Figure 7 appears to show that emissions from coal burning account for 90% of the total emissions from all combustion globally. (There are other sources of greenhouse gasses, not just combustion, fertilizer and cement-making, for example). This would imply there is very little natural gas, gasoline, diesel, and aviation fuel burned in the world outside rich countries. If true, it shows the gargantuan impact on global warming imposed by Chinese coal burning. Predictions aren’t facts until they happen.

    1. “What I do know is no Western country will allow its government to make its citizens poorer by making energy scarce, unreliable, and expensive.”

      You’re assuming that there will be functioning governments with continued climate degradation. I’m not so sure.

  10. I think that voting should be obligatory in the U.S., with failure to do so punished in some way. This will ensure that (except for the damn electoral college), every Amercan gets a say.

    I don’t favor penalizing non-voters. My state does not count votes for for people not registered as candidates, so my ballot did not count as a vote. I should not be penalized for that.

    I would like to see all people in the US voting though, without discrimination on the basis of citizenship or age. Today’s ten-year olds will be paying for today’s political decisions twenty years from now. Non-citizens are being taxed today, even though they are not represented. This all falls under the category of taxation without representation. Eventually some people will age into suffrage, and non-citizens can attempt to become citizens, sure, but these are just extra hurdles to get to the vote and the USSC has declared more and more hurdles to be unconstitutional.

    1. Correct (aka i agree). No reason to encourage people to vote on things they know nothing about. People will randomly pick names or automatically No. I often skip judges and school board. Forcing people to vote without requiring them to show some knowledge of the issue does not help.

    2. I was somewhat shocked to see the statement you quote above. I hope it was just an emphatic endorsement for voting and on further reflection Prof. Coyne would abandon the coercion.

    3. I object less to mandatory voting in voting districts with an explicit None of the Above response, requiring candidates to get a majority of all votes cast, including any None votes. Unfortunately, no US districts have implemented explicit pre-printed None options, and I’m not sure whether any districts even count write-in Nones.

      Even if voting were mandatory for some, I hope there would be exceptions. I am a permanent absentee voter; I have lived overseas for decades, sometimes in countries without a well-functioning or convenient postal service.

    4. And then there’s the problem of Washington D.C. where millions fall under the category of taxation without representation.

      I do think it would be nice if American citizens were automatically registered to vote when they hit 18, but I agree that coercion goes too far.

      1. “The California Motor Voter program is making registering to vote at the Department of Motor Vehicles (DMV) more convenient. Eligible applicants completing a driver license, identification (ID) card or change of address transaction online, by mail or in person at the DMV will be automatically registered to vote by the California Secretary of State, unless they choose to opt out of automatic voter registration.”

      2. There are under 700,000 people in DC – and we can assume that 100-200,000 are currently ineligible to vote (children and non-citizens).

        It would have been relatively easy to designate the residential areas of DC a special district of Maryland again, but now with the 23rd Amendment (granting DC electors), it would take a constitutional amendment to do that.

  11. Yet, as The Times’s Adam Nagourney reported in March, “Through dozens of exhibits and rooms, there is barely a mention of Harry and Jack Warner, Adolph Zukor, Samuel Goldwyn or Louis B. Mayer” — the Jews who essentially founded the modern movie industry.

    Jeez, Bret, Jeez, Adam, what’re William Fox (born Wilhelm Fried Fuchs) and Jesse L. Lasky (cofounder of Paramount), chopped liver?

  12. “I think that voting should be obligatory in the U.S., with failure to do so punished in some way. This will ensure that (except for the damn electoral college), every Amercan gets a say.”

    I live in a country where that is the law. I don’t think it works very well. It just adds white noise to obscure the votes of informed people. I think that if someone doesn’t have a strong opinion about the issues, that person shouldn’t be forced to express such an opinion by voting.

    1. Yeah, I think our host is misguided on compulsory voting. I do think that voting should be made as easy and accessible as possible. If this nation were serious about participatory democracy, there would be a biennial national voting holiday, during some month less likely to have inclement weather than November.

      1. > during some month less likely to have inclement weather than November.

        I just did some digging and realized I was wrong about an assumption. I thought that the US Constitution declared that elections would be in November and inauguration in January. It says nothing of the kind. Until 1937, inauguration was always in March or April.

        It’s one of those cases where people think that developments that have been around for two generations have always been there – like “In God We Trust” on money, or Daylight Saving Time.

        1. Presidential inaugurations were moved up to January after Giuseppe Zangara tried to assassinate president-elect Franklin Delano Roosevelt in February 1933 in Miami’s Bayfront Park. Zangara missed his target and shot and killed Chicago mayor Anton Cermak, who was shaking hands with FDR at the time.

          For 20 years I used to be able to look out my office window and espy the spot where the deed was done.

    2. Interesting anecdote…thanks for the comment, you make a good point. I think what should be obligatory in the U.S. is civics classes. We used to teach it in this country, but I think those in power would rather have an ignorant electorate. Cynical, I know…

      1. Ha Ha. Given the political rewriting of history and other texts, i shudder to think of a modern “civics” class. Misinformed > ignorant.

    3. Lou, how does such a law work in your country? Are people fined for not voting? Is the law actually enforced? In the U.S. such a law would create a bureaucratic nightmare and likely be unenforceable. I think it highly unlikely that the IRS would be required to collect fines from tens of millions of people. It has enough problems as is.

      1. Historian, the government here has an easy way to enforce it. Every time you need to do anything with the government (renew a licence, get a medicare payment, sell a bit of real estate, etc) you have to present an up-to-date voting certificate that proves you voted.

        1. Thanks for the information. I doubt that this technique would work in the U.S. It would be viewed as much too coercive. However, it could be something that would unite the Left and the Right.😊

  13. Antisemitic attacks: The massacre at the Tree of Life Synagogue in Pittsburgh, that claimed eleven, was 4yrs ago today.

  14. There is an opinion piece in today’s NYT by a “retributivist,” who believes that the Parkland school shooter should have been sentenced to death, and that, in fact, retributivism “… provides capital punishment with its only truly moral foundation.”

    It’s a provocative idea (I was heretofore unaware of the philosophy of retributivism) but it’s entirely premised on “…condemning the free will that produced his monstrous crimes.” Obviously this author believes contra-causal free will is real.

    I’m opposed to capital punishment for any reason,* but there is one thing about this article I do agree with: if you have the death penalty, how would this guy not qualify?

    * There was an interesting idea in an Iain Banks novel about this. I am probably misremembering, but I believe the idea was that the state could execute prisoners, but the executioner him/herself would go to prison for murder. I like it how it forces you to confront the idea of retributive justice, and how much it’s really worth to you. I really need to re-read that book.

    1. Funny, I’m just writing about the op-ed at this moment, and I agree with you. All retributive justice is based on the presumption that the criminal could have done otherwise, and made the wrong choice. It’s based, in other words, on libertarian free will, which in my view doesn’t exist.

      1. I figured you probably saw that piece, but wanted to call it out just in case. I suspected you might have some thoughts on it!

      2. Even if one accepts the retributivists’ premise (which, as a hard determinist, I don’t), no jurisdiction has ever yet come up with a system by which a jury of laymen (or any other tribunal) can readily apply the death penalty that is not arbitrary and capricious (at best) and biased and prejudiced (at worst).

        I challenge anyone to propose a set of jury instructions, or another system, capable of accomplishing that task.

        1. If one followed a utilitarian moral system (e.g. Bentham, Mill, Peter Singer), the widespread pleasure/happiness at seeing a really bad guy executed would tip the scales. When people talk about retribution, I think they often mean this brand of Utilitarianism and this motivation doesn’t depend on free will belief at all.

          1. I think you’re right, Carl. I suspect that while I find it easier to argue against the death penalty than for it, the Benthamite satisfaction of imagining the trapdoor opening—we never used any method but hanging—still does it for me in a “total quantity of happiness” sort of way. It’s akin to the relief we feel on hearing that a mass shooter, or mass knifer in our recent Saskatchewan case, has died before or during arrest. I’m not comfortable with Utilitarianism in general but I think it hits the mark here.

            The death penalty also has the utilitarian attractiveness of eliminating recidivism and the cost of a lifetime of incarceration. (The argument that the endless appeals make a life sentence the cheaper option is not really an argument. It is so only because some death-penalty societies choose it to be so. China sure doesn’t.)

            1. At every level of those “endless appeals” an offender has been discovered to be innocent. Eliminating any level of the appellate or post-conviction process increases the chances of executing an innocent person. (This is, of course, not a problem in an autocratic nation such as China where efficiency outweighs fairness.)

              Even if one accepts the Utilitarian argument, it does not resolve the intractable problem I referenced above regarding devising a reliable, non-capricious process for identifying the cases actually deserving the death penalty.

              Arguments to the contrary invariably boil down to “I know a deserving death penalty case when I see it.”

              1. No, if you accept the Utilitarian argument then the need for your reliable, non-capricious process is overridden by the greatest good for the greatest number maxim. If the total happiness experienced due to execution exceeds that of the pain, it doesn’t even matter if the executed is guilty.

                Utilitarianism is deeply flawed, as no doubt all moral philosophies are.

              2. Carl and Ken,
                Rule Utilitarianism would not be satisfied by executing an innocent man just because it made the spectators happy in the moment. Punishment maximizes the greatest good for the greatest number only if you punish the guilty, say Utilitarians. Otherwise people live in fear of random punishment by a clumsy, incompetent state which lacks even deterrent value.

                The imposition of the death penalty on a convicted murderer can be as capricious as you like, as long as you’re sure you got the right guy. The caprice isn’t the problem. The lack of certainty of guilt is, when applying a penalty that can’t be undone.

                When we had the death penalty—the last hanging was when I was less than 10 years old—it was the judge alone who imposed the death penalty, as with all other sentences. A murder deserving the noose was whatever the judge thought it was. No charge to the jury that could be picked apart on appeal for errors of caprice or racism.

                Anyway, I’m just defending Utilitarianism here, not capital punishment.

              3. Rule Utilitarianism would not be satisfied by executing an innocent man just because it made the spectators happy in the moment. Punishment maximizes the greatest good for the greatest number only if you punish the guilty …

                Were it otherwise, Utilitarianism would support adopting a lottery system, as in Ms. Jackson’s famous short story, whereby some unlucky townsperson would be selected to be stoned to death, providing that the execution brought more pleasure to the surviving townspeople doing the stoning than it brought pain to the condemned.

  15. “If no branch of the government takes action, hundreds of people will remain behind bars for crimes that at least one juror did not believe they committed.”
    If no branch of the government takes action, hundreds of people will remain free for crimes that at least one juror believe they did commit.

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