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Thursday, April 18, 2019

Conlawprof, WWII’s War Crimes Tribunals, and the Death Penalty

Responding to a prior discussion involving the death penalty and Justice Jackson (who had been a prosecutor at the International Military Tribunal at Nuremberg), AAA, a regular CONLAWPROF participant, wrote:
“I don’t care whether [Justice] Jackson was pro or con the death penalty personally. It hardly seems to matter. What’s important is that he recognizes that the death penalty exerts a distorting effect on the law and legal process …. Nobody has explained the rationality of the death penalty …. When’s the last time you told a child, or grandchild of yours that ‘killing other people is okay so long as we’re doing it to them because bad people deserve it; this is how we show people how good we are, by killing all the bad people’?”

Tillman responded:
Professor AAA would you affirm (in line with your prior post) that the death penalty imposed by the International Military Tribunals (IMTs) at Nuremberg, Tokyo, and Manilla were substantially wrongful?

I would have no problem explaining to adult third-parties that the reason the IMTs imposed the death penalty was that many of the war criminals remained hugely popular with large numbers of their countrymen (and their soldiers), and, for that reason, the Allies thought it prudent to block their election (or reelection) to public bodies after hostilities had ended. Many believed that WWII followed WWI in part because no such punishments had been meted out after WWI, and that but for the death penalty following the IMTs, the same people would look for a rematch in a WWIII. I dont know that they were wrong.

I think Professor BBB believes the EEC/EU has kept the peace (or helped to do so) in Europe. Some believe it was NATO. Maybe it was Nuremberg and its executions? It is a question I don’t claim to know the answer to. But I would be hesitant to say the Allied authorities, judges, and prosecutors at the IMTs were wrong based on my personal experience as a lawyer (and citizen) during peacetime in the United States.


Seth Barrett Tillman, Conlawprof, WWII’s War Crimes Tribunals, and the Death Penalty, New Reform Club (Apr. 18, 2019, 7:19 AM), <https://reformclub.blogspot.com/2019/04/conlawprof-wwiis-war-crimes-tribunals.html>. 

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Have a look around New Reform Club--my co-bloggers do good work.


Tim said...

AAA's question is infantile and tendentious. As a law professor, he can't think of any other way to pose his thesis?

SDN said...

The death penalty serves exactly the same function in the body politic that the immune system does in the human body. And while the human innune system may mistakenly refuse to remove cancer, or may remove things it shouldn't in autoimmune disorders, giving yourself AIDS to turn off the immune system is a Bad Idea.

Inkling said...

It's foolish to see certain similarities between crimes and their punishments and then equate the two. That makes absolutely no sense. Even a relatively mild felony can result in several years of prison time. Draw the same crime-punishment parallel, and prison time becomes a particularly brutal form of kidnapping. It's not only typically for far longer than a kidnapping, kidnapping is considered one of the worst of crimes, much worse, in fact, that many of the crimes for which imprisonment is considered a legitimate punishment.

Note where that reasoning takes us. Punishing first-degree murder with execution is making the punishment fit the crime with great precision. You killed, so you die. Punishing auto theft with imprisonment is, if you adopt that same bizarre parallelism, punishing a lesser crime with a greater punishment-as-crime. The result would be a long list of crimes that can't be punished by imprisonment/kidnapping.

I would add that I agree with your remark that we needed to hang the top Nazi war criminals lest the Germans, many of whom never liked our "victor's justice," would later find a way to free them, had they been merely imprisoned. Indeed, that's precisely what happened to those convicted in the euthanasia cases, typically involving the murder of disabled children. Many were not only freed after a few years, they returned to their medical practices.

--Michael W. Perry, editor of Chesterton on War and Peace: Battling the Ideas that Led to Nazism and World War II

TMLutas said...

Is poor parenting skills a frequent topic of the CONLAWPROF forum? I'd have thought that a simple search engine query would have sufficed to provide practical how-to instruction. If you have raised a child to the age of majority and *never* covered crime and punishment, including capital punishment, you are a bad parent. These are things that should be covered.


Tim Kowal said...

"Nobody has explained the rationality of the death penalty …. When’s the last time you told a child, or grandchild of yours that ‘killing other people is okay so long as we’re doing it to them because bad people deserve it; this is how we show people how good we are, by killing all the bad people’?” "

I do not know if the good professor scoffs in earnest. I will not presume he sincerely believes his neighbors and countrymen wish to "show people how good we are" by killing people, even killing bad people. I have never heard of that. Perhaps they kill guilty people for the kinds of reasons Seth gives. Indeed, criminal punishment has been rationalized in modern times as means of preventing future, in contrast to a means of punishment. That is why we call it "corrections." We suppose that prisons are meant to rehabilitate the guilty. The death penalty, in this view, is indeed senseless, for there is no rehabilitation for a dead man. The only good to come out of it might be that the grisly example will deter others. But the death penalty is too seldom used to be effective as a deterrent. So under the "corrections" model, the death penalty is rather pointless.

But the "corrections" model is not the only model justifying criminal penalties, including the death penalty. One may rightly point out the limits to correcting our fellow man, and the vanity and tyranny we risk in the attempt. As C.S. Lewis said:

"Of all tyrannies a tyranny sincerely exercised for the good of its victims may be the most oppressive. It may be better to live under robber barons than under omnipotent moral busybodies. The robber baron's cruelty may sometimes sleep, his cupidity may at some point be satiated; but those who torment us for our own good will torment us without end for they do so with approval of their own conscience. They may be more likely to go to Heaven yet at the same time likelier to make a Hell of earth. Their very kindness stings with intolerable insult. To be "cured" against one's will and cured of states which we may not regard as disease is to be put on a level with those who have not yet reached the age of reason or those who never will; to be classed with infants, imbeciles, and domestic animals. But to be punished, however severely, because we have deserved it, because we "ought to have known better," is to be treated as a human person made in God's image."

Surely the case for the death penalty as, simply, a penalty -- a natural moral consequence of convict's own heinous murder -- needs no explanation? A man who has defrauded another, we easily understand, has no moral right to the property he holds as a result of his fraud. A sheriff thus does not deprive the fraudster of “property” in the [proper] understanding of the word. A man who is convicted of crimes of violence has forfeited his moral right to liberty, and thus the jailer deprives him of nothing by locking him in a cage.

Similarly, in a case where a human being has intentionally and imminently threatened the life of another, he is deemed by moral reason to have forfeited his moral right to be free from mortal threat to his own life. A man who kills in self-defense not only has committed no moral wrong: he has saved one innocent life at the expense of none. His courage profits the world an invaluable gift.

What difference is there, then, in the taking of a life forfeited through aggression in the moment of that aggression, and the taking of a life forfeited through aggression at a later time upon conviction through a due process of law? In moral reason, there is none. The decision to kill another in self-defense is no different than the decision to kill an individual convicted of murder and sentenced through due process to death. In each case, that individual has forfeited his life.

That is not to close the books on the discussion. But the professor ought to be ashamed at his ignorance, and at presuming to throw a millennia-old precedent out of court.

ColoComment said...

The case of Lawrence Singleton persuaded me that some people may commit actions that strip them of the rights and privileges of participating in human society. By these actions, they forfeit the cloak of humanity.
If you recall, in the late 1970s, Singleton picked up and raped Mary Vincent, and cut off her arms at the forearm, and left her to die in the desert. Amazingly, she survived. Singleton served just over 1/2 of his sentence for those crimes, and after being freed went on to murder another woman.

However, the long list of death row inmates, convicted by eyewitness testimony or similar seemingly incontrovertible evidence, but then exonerated by DNA, has persuaded me that while some may earn the death penalty for their crimes, the process is extremely vulnerable to negligent, mistaken, or malicious prosecution, and therefore should be used very cautiously.

So, yeah, I'm torn.

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Greg Glen said...
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