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September 24, 2010

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Orin Kerr

Dan,

I haven't followed the case closely , but this is the woman who hired two men to kill her husband and stepson to collect the life insurance money, right? That is, she didn't pull the trigger because she hired two men to commit the double homicide of her husband and stepson on her behalf?

Dan Filler

Hi Orin. That is the narrative that led to her getting death. There are other narratives, including the one that one of her confederates stated before he killed himeslf in prison - namely that Shallenberger (who was having an affair with Lewis) saw her as a easy mark to collect some money. And there have been suggestions that Shallenberger, unlike Lewis, had very high intellectual functioning. Who really knows what happened - and that is yet another point we must live with in these cases. There are almost always two narratives and we never know what really happened. That's particularly true here because the trial lawyers in this case didn't want to articulate the alternative narrative because that would have required a trial - and their core strategy was to plead for death. But as to your basic point - she was clearly intimately involved in the murder notwithstanding the fact that she didn't kill the men.

John

Of course, the argument that you can't let imperfections get in the way of the good presumes that killing someone is a good. This is the heart of the dispute over whether the death penalty should or should not exist.

I think you hit the nail on the head, though. Death penalty advocates worth their logical salt have to own the idea that killing someone can be a good. To do otherwise is to concede the very argument.

The middle ground arguments of "you shouldn't kill unless you are certain" and "we can be strongly certain and therefore should be allowed to kill" are made by folks running from the realities that, in the end, another human's life is over. After all, there is no way to be absolutely certain after a trial.

Orin Kerr

John,

I haven't followed the case, but doesn't everyone agree that Lewis is in fact guilty -- at the very least -- of active involvement in a conspiracy to commit a double homicide of her own husband and son-in-law in order to collect the insurance money, a crime to which she pleaded guilty instead of going to trial?

John Nelson

I have not read the case either, but that is my understanding.

The level of certainty comes down to the criminal constructs of culpability and intent, not guilt. Add into this the unique rules concerning death penalty cases and you have a system that is a melange of moralism, legalism, empathy, and sympathy that highlights the conflicts surrounding death penalty cases.

In the end it all comes back to whether you believe there can be a good in ending a life. Some do, some do not. The systems we construct around a death penalty case only serve to soothe the consciouses of those who agree to disagree.

Orin Kerr

John,

Thank you for responding, although I don't follow your argument. Can you explain a bit more what you mean?

John Nelson

The basic argument is that no matter how perfect the judicial system works in death penalty cases, it does not deal with the reality that some people believe the death penalty is never good.

Similarly, there are people who feel that the death penalty is just.

In the middle are those who equivocate.

The system of checks and attempts to make it more 'fair,' less likely to capture the innocent, or the mentally infirm, or disproportionate numbers of minorities, exists solely to soothe the conscious of the equivocating middle.

The last two paragraphs of the original post touch on this.

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