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An Idiot Texas Governor with Folksy Sayings, Strong Religious Impulses, and a Tin Ear for Politics

My father decided that since I'm leaving soon, we'd watch a film with some legal themes in it, and chose The Life of David Gale. It's got a great cast, superb acting, and a complex plot, even if some of the directing and cinematography is pretentious in the extreme.

But it's a death-penalty film, and while not completely predictable, it's trite in one particularly annoying way. For a bit of full disclosure, I'm pro-death penalty, but I'm willing to be convinced. On the other hand, I find most death penalty advocates won't convince me. This is mostly because they have no problem with legislating through the courts, through clemency, through anything except actually convincing their fellow human beings of the rightness of their cause and carrying it through a legislature. Whatever the value of the death penalty one way or the other, the value I place on legislatures and democracy means I'm unlikely to find common cause with them.

And here's where Gale falls down. Throughout the film, there is no well-informed argument in favor of the death penalty, though there are plenty of arguments (some well-informed, some pure passion) against it. Those who support capital punishment are presented as purely vengeful maniacs, ambitious politicians, or other morally reprehensible characters. It is just as in The West Wing: it's an uncommon Republican who hasn't got horns and a tail, or who has sense to pour piss out of a boot with instructions on the heel.

For a film that is, for all intents and purposes, a walking polemic, this is a pretty serious failing. It makes it impossible to take any of the (fairly flawed) main characters seriously in their opinions. Those who wonder what conservatives mean when they speak of a 'liberal bias in the media' should remember that it's not just news media that is being pondered. It's amazing how many people I know get their information from sources that are purely 'entertainment.'

Of course, it's the old saw about Hollywood Republicans: the only thing good about being a Hollywood Republican is that one out of four of them get to be president. (And who knows, maybe two out of four of them will become governor of California.)


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You have a fascinating position. Most people who oppose the DP place that belief near the top of their value hierarchy. Not many values (for these people) tend to supercede a belief that killing is wrong, for example. Thus, anti-death penalty advocates generally will use any means available to them in order to see that value met. You, on the other hand, value the principle of political process and proper governmental roles above any of these potential values. So it's little wonder that you've not been convinced. It's a question of value systems and premises, which is why DP debates (and abortion debates for that matter) often have people talking past each other. While I have lots of reasons you should oppose the DP (and David Gale probably gave you a bunch of them, though I haven't seen it), I will say that you're mistaken as to the reasons why DP opponents legislate through the courts. DP litigation is a monster. The amalgamation of federal laws, federal precedents, state laws, and state precedents combine to cause the huge court process. I'm summering at the California Appellate Project in SF, and I can tell you that the direct appeals, the habeas petitions, the federal appeals and all those things that contribute to the 'litigation' in the courts are actually REQUIRED by federal and state law. In other words, DP opponents are mandated to 'legislate' through the courts by requirement of due process, etc. None of these problems would occur if we got rid of the DP. You wouldn't have legislation in the courts, we wouldn't have innocent people dying, and everybody would save a crapload of time, money, and resources. Indeed, I would say its precisely because democracy fails here that the judicial system has created so much legal mishmash. If voters and legislators gave proper funding or resources in the way of DP, then this judicial hydra wouldn't have so many heads. This stuff, of course, only applies to the in court elements of the DP. If you don't like the Pope asking for clemency, or people protesting outside San Quentin, nothing here applies. BTW, I'd like to hear your thoughts on Hard Boiled Wonderland. I finished it early this summer, and though I loved the book, I thought the end was fairly disappointing.
Hiya, Eric. First, on HBW&TEOW, the ending struck me as very sad, but nowhere near as interesting as the beginning. I've found, though, that it struck a chord with me at a time in my life when I also felt that, frankly, whatever was done I wasn't going anywhere. Lastly, I doubt I'm wrong about why death penalty advocates legislate through the court system, I merely apply that term to different activities. Filing appeals that are mandated by law can't be considered inappropriate, as it's following what's legislated. But attempting to get the death penalty itself ruled 'cruel and unusual' would count. Asking the Supremes to overrule the penalty itself would count. And what impresses me least about so many anti-death penalty advocates is the degree to which they're clearly uninterested in going through the legislative process. And of course, the trouble is that it leads to the most awful impass. Imperfections in the capital punishment system can't get fixed, because those who point out what is broken use this as an abolitionist argument, which means those who might otherwise fix it can't admit the problem exists...
Hey Anthony, I can't say I'm impressed by your reasons for being pro-death penalty thus far: First: Your valuation process seems flawed. You're judging an end position value (pro/con death penalty) by the process values of the proponents. This seems a little off. It's kind of like saying, "I won't go to New York to visit my friend because I see people drive there in SUV's, which I hate." You're making a decision about an end (traveling to NY) by looking at a particular process (driving via SUV) that could achieve it. Put it another way, would you be happy if I was pro-choice simply because some pro-lifers shoot abortion doctors? Second: You also seem to reject a position by association, something I wouldn't think of you from your other posts. "And what impresses me least about so many anti-death penalty advocates is the degree to which they're clearly uninterested in going through the legislative process" I don't think its a compelling way to evaluate a position by seeing what part of the spectrum you might end up being associated with. I dislike copyright (more likely i loathe the RIAA) like you do, but that doesn't mean we should fear suddenly being branded communists who hate all property. Similarly, I don't see why you should be "impressed" by people who utilize methods you deplore. Certainly you could be someone who opposes the death penalty AND are willing to change it only through legislative means. Lastly: I think on something like the DP, where we're killing people, one should justify why they advocate the state killing someone, especially in the way that it's carried out in the US. Isn't it a little more rationale to say, "justify why we should kill or go to war," instead of "justify why we should NOT kill or go to war." Didn't we leave the state of nature to avoid killing and war? (rhetorical point, no real state of nature exception noted) Personally, I oppose death penalty except maaaayybbbe for acts of mass terrorism, a la Timothy McVeigh, AND I would need a thorough investigation of mitigation evidence to be presented before I would be comfortable about it happening. I'm more against the DP because the system is rife with flaws, and you can't reverse killing someone, unlike LWOP.
Well, first of all, re: juding process values vs. end-position values, it depends upon how much you care about each of them. I believe that processes are critically important in producing certain end-values. (Basically, I'm entranced by systems, something I've admitted before.) So, something that risks weakening a system that I value (such as a democratic legislative process), whether it produces a positive benefit in an 'end-position value,' is like throwing the baby out with the bathwater. Your analogy seems correct only because the hatred of SUVs is purely irrational, and the setup is silly: by not driving to New York, I don't stop anyone else using an SUV, and I don't have to drive that way. But by supporting the death penalty I may in fact stop a type of judicial activism that I consider systemically dangerous whatever I think of the death penalty. (I'd object, for instance, to outlawing abortion via the Supreme Court just as much as I object to making it a 'right.') Secondly: You also seem to reject a position by association, something I wouldn't think of you from your other posts. Let me be clear--this is a position arrived at through an awful lot of experience, although I'll admit it's anecdotal. A good number of my friends in New Orleans have been involved with the "Not In My Name" project and various other anti-CP causes, and I've helped more than one friend arrange their internships in such organisations. (Friendship trumps politics for me, and I'll help a friend out if it's something they believe in. Another reason I'm a lousy Republican--more donkeys than elephants owe me favours. :) ) In absolutely none of my direct experiences with anyone opposing capital punishment (in more than an 'I'm arguing at dinner' kind of way) have I met a person who was in the least concerned about judicial overreach, the primacy of legislatures, or any broader systemic process. Indeed, most recognized that the death penalty had immense popular support in the United States and that they were unlikely to gain victory at the polls in the near future--and this fact didn't trouble them. You're right, however, that in theory I could oppose both the death penalty and judicial activism, and that I could support such an organisation if it convinced me of how wrong CP was. However, I've never had anyone convince me that their cause was just without simultaneously worrying me that the price of my support of their position would be the sacrifice of systemic values which I hold more dearly. If such an organisation exists, then by all means point me to them and I'll at the very least listen. However, I've worked with a fair few anti-CP advocates (lawyers, lawyers-in-training, and just plain advocates) and not ran into a one yet. I'm pro-CP, but again, not very strongly, and mainly because I don't believe that the state doesn't have the right to kill someone. It does, after all, have the right to send people to war through selective service, which is also deadly. I might be willing to oppose a DP statute, and might even be willing to admit that it's not very cost-effective. But at the moment I see no way, even if I did oppose CP, to overturn it without allying myself with people who promote a cause I feel is much more dangerous than capital punishment, whatever its merits or flaws. In short, I think your differentiation between end-position and process values is a bit of a straw man. One values process because it guarantees certain things as end-positions (social stability, political efficacy, a sense of responsibility for one's own political position), and these are end-position values that, whilst not directly a matter of capital punishment, can be considered important. Finally: I can't say I'm impressed by your reasons for being pro-death penalty thus far: I'd hope not, as what I've given so far is reason that I can't find common cause with most CP abolitionists. I don't think that until this particular comment I've even peripherally argued for why I support the death penalty, certainly not as a main point of discussion.
Thank you, Eric, for a comment that has given me a lot of thought. When I looked back at your post, one other comment struck me: Put it another way, would you be happy if I was pro-choice simply because some pro-lifers shoot abortion doctors? Certainly not, but your question poses an even deeper question. Suppose that I were pro-life and you were pro-choice, and that neither of us were particularly for the use of violence to attain political ends. And suppose that, over a good cup of coffee and a fair few evenings, I was able (again, hypothetical) to make you imagine that I might indeed have a point, and that perhaps abortion was unethical to the point where it should be illegal. But suppose that at the same time I'm convincing you of this, several abortion doctors are shot. Perhaps related to this, perhaps merely because of people like me convincing people like you, it seems that an anti-abortion constitutional ammendment is getting close to passage, thus trumping Roe v. Wade. Given that you're now nearly convinced of a pro-life cause, might you not still opt to campaign against the passage of the ammendment, on the grounds that its passage might appear to reward (indeed, might actually be rewarding) those who believe that violence is a legitimate means to achieve political ends, and lead to more shootings of law-abiding citizens in later political dialogues? Would it not be an honest trade-off to put aside a belief you hold less dearly (your newfound pro-life stance) in exchange for one more important?
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