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November 17, 2015


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Orin Kerr

Focusing on Carson, I think Steve's argument has some problems. First, there's the obvious possibility that Carson might not telling the truth as to the reason he refused a paternity test that could ruin his public image. If he refused the test out of self-interest, for example, then that does not have any implication for his view of the death penalty.

Second, even if you assume that Carson is telling the complete truth as to why he refused the paternity test, I think the op-ed overlooks the specific reason Carson stated. Carson didn't say that he couldn't trust governments enough. Instead, he said that "any governmental agency that was willing to pursue a paternity suit [against him] on such flimsy grounds" was incompetent, and therefore he would not trust that agency.

More broadly, my sense is that arguments that people who think X should really change their minds to be consistent with their principles are uphill arguments to make. Almost everyone believes in some version of major principles in different contexts. But high-level principles often don't have universal application. For most people, they are values that come to play in some contexts but not others. The disagreement is on how different principles apply to specific problems. Given that, the fact that a person believes in a particular high-level principle that influences them in one context usually won't itself provide a persuasive reason why that particular principle should govern their thinking in a different context.


For the moment, let's put aside Orin's suggestion that Carson might have been fudging the truth. (On the other hand, what hospital lawyer has ever called a surgeon in the operating room to discuss a summons?)

Carson did not merely say that he mistrusted the agency that pursued the paternity case. He posited that he could be placed at a murder scene, convicted on the basis of unreliable evidence, and sentenced to prison. Thus, he mistrusted the entire criminal justice system.

In other words, he did not believe that the safeguards in the system are adequate to prevent false convictions. That is directly relevant to imposition of the death penalty, and not only by analogy.

I am not saying, as Orin interprets me, that if you believe X in one context you must also believe it in another. Rather, I am saying that if you believe X for yourself, you should also believe it for others.

If the possibility of wrongful conviction in Florida is so grave that it frightens Ben Carson, then there is good cause to worry about executions carried out by the same criminal justice system.

Orin Kerr

Steve, I think you're over-reading what Carson said. In context, Carson's comment that he would probably be wrongly convicted of murder was presumably meant as hyberbole. I think it's a stretch to take it as a broad statement of mistrust of the entire criminal justice system. And even if Carson mistrusts the entire criminal justice system, doesn't that mean that, to be consistent, Carson should want to ban the entire criminal justice system? I don't see how anything he said relates to the death penalty specifically.


Thanks for your comment, Orin.

Yes, Carson was making a rhetorical point about the unreliability of government. My own rhetorical point is that mistrust of government ought to extend to imposing the death penalty. As Bill O'Reilly once said, the death penalty is one more government program that doesn't work.

Wrongful convictions happen, and the stories of laboratory errors -- or misfeasance -- are well known.

As to banning the criminal justice system: We must have a criminal justice system, even with its imperfections. We do not have to impose the death penalty, which is irreversible.


Isn't there another possibility?

Isn't it possible that the errors in the Florida bureaucracy to which Carson referred were not deemed to be a.) universal and b.) immutable byproducts of government decision-making?

In other words, might Carson require safeguards, perhaps additional and more stringent safeguards, to avoid such errors in cases involving capital punishment? In fact, such safeguards exist.

To be sure, these safeguards don't always work. Did Carson state his support for state by state determination of the possibility of capital punishment means that he supports a flawed conviction based on tainted evidence? That seems to be your point, Steve.

As usual, you are inclined to nit pick the statements of Republicans, and then try to drive elephants thru the mouse holes you find, in your partisan vendetta.

Why not, Steve, take a moment or two to discover if there are any inconsistencies in the statements of those leading your team?

Perhaps if you paused to do this, you would see that your "the other side must be attacked relentlessly" campaign here in an academic forum, while perhaps in keeping with the political views of most in legal academia, is so inapt and reflects a juvenile and very unsophisticated "us and them" "they are evil, we are good" view of the world.


should be:

Did Carson's stated support for state by state determination of the possibility of capital punishment mean that he supports a flawed convictions based on tainted evidence?

Enrique Guerra Pujol

What about erroneous acquittals? Those too are "irreversible" ...



Remember the old adage: better a hundred guilty men go free than one innocent man be hung ...

Or, something like that.

Of course, Steve, the person who said that must have been a Democrat. A Republican would never approve of fairness or justice or equity or any positive value in the world. Republicans are evil, evil, evil, let's not forget.

How do I know? I'm sure you are relentlessly combing thru Trump's statements right now to prove the point!

And, you are doing this to prove that the Democratic party is the party of unity, bringing people together and discouraging partisanship. Why, a Democrat has no "enemies" in America, only fellow citizens to be persuaded.

It's just like the pigs wrote it on the wall of that barn.


Actually, there are increasingly serious concerns with DNA, in particular low copy number DNA, because of the degree of amplification it can make of secondary and tertiary transfers - it may for example have been at issue in the Meredith Kercher/Knox/Solecito case, where several of the DNA samples were found using it. The heart of the concern is that as DNA testing has become very sensitive, and increasingly regarded as conclusive, we have been ignoring the extraordinary sensitivity of LCN DNA testing, and its ability to find DNA transfers that can in fact be well separated from the source.

For an article covering some of this in lay language, see


Note to commenters: the inclusion of a link appears to trap you comments in the spam filter. I check the filter several times a day to release such comments, but delays will be inevitable.

Sorry about that. I have no control over the sensitivity of the filter settings.



not to worry. It was an aside on your comment about the trustworthiness of DNA testing. A yes - but......

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