USS Clueless -- Capital punishment and transplants

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Capital punishment and transplants

The foundation of our legal system is ultimately trust. No-one really wants to go to court, but we accept that we must because we believe that the legal system is trustworthy. This is based on the assumption that judges, and juries, are disinterested. When presented with a case to decide they will decide it on its merits and on the basis of law, and not based on their own interest.

A judge or juryman who has his own interest in the case might still be able to decide the case on its merits, but if they were to decide it in a way that benefited themselves, there would always be doubt. So our judicial system contains mechanisms to prevent this. If a judge has a conflict of interest, he will recuse himself from a case, and some other judge will be assigned. This happens a lot. As I write this, Microsoft's antitrust case is before an appeals court, and two judges from the court recused themselves from the case.

Equally, during the process of selection of juries, each potential juror is questioned on a number of points. For instance, they'll be asked whether they know much about the case about to be tried. They'll be asked if they've formed an opinion about it. And they'll be asked if they know any of the parties to the case. If any of those things is true, the juror is dismissed without question. In addition, each side in the case is permitted a certain number of peremptory challenges which means that they can force a juror to be dismissed for no reason at all, though it's most commonly done because they think that the juror might be prejudiced against their side in the case. The point of all this is to guarantee, as much as anything can be guaranteed, an impartial jury with little preknowledge of the case and with no personal interest in its outcome.

In many cases a trial will be moved (granted a change of venue) because it seems as if local publicity about the case makes it improbable that an impartial jury can be selected in that domain.

Now perfect justice is impossible, a goal for which we constantly strive but never achieve. But the fact that justice is inevitably imperfect doesn't excuse us from trying to eliminate as much bias as we reasonably can, and the foundation of our system of justice is precisely this idea of impartiality. Because of it the parties of the case walk into the court room to make their best case, and agree to abide by the outcome even if it goes against them.

In a civil trial, neither judge nor any member of the jury should have any possibility of gain from any outcome of the trial. In a criminal trial, equally there must be no way in which a verdict leads to direct gain to the state (and thus indirectly to gain to the citizens of the state, including those serving on the jury).

If, for instance, a convict could be made a slave and sold, yielding revenue to the state, then this would set up an inherent conflict of interest (as well as being inhuman). So punishments in criminal trial should be based solely on the crime and circumstances surrounding it, and it is essential that there be no important benefit to the state or its citizens.

And that's just what isn't happening in China now. China executes more people each year than the rest of the world combined. I favor capital punishment, in certain cases. I believe that some crimes are so serious that they demand an ultimate punishment. There are cases where there is no doubt, none whatever, that the defendant is guilty, so arguments about "you might be executing an innocent man" don't apply. Take, for example, Jeffrey Dallmer -- who was not sentenced to death, because the state in which he committed his crimes didn't have the death penalty at the time. But had he been, I would have considered it completely justified. Dallmer was a mass murderer who not only killed many times, but who then ate parts of his victims. When he was arrested, pieces of the corpses were found in his freezer. No-one, no-one, would contend that there's a chance he was innocent. Ultimately he did die in captivity, though; there was a prison riot and he died in it. I did not mourn him, to put it mildly.

There's no hurry about an execution. The process should involve appeals, review, due process, checks and double checks. But ultimately someone like Dallmer or Timothy McVeigh, should pay for their crime, and for me, life imprisonment isn't enough for crimes that extreme.

I don't think that capital punishment serves as a deterrent. I also don't care. I want men like Dallmer or McVeigh executed because of justice.

But it is important to make sure that in such a case execution really is deserved, and that again requires that disinterested judge and jury. And that's why we cannot use the organs of an executed felon for transplant.

Those organs could save lives -- and that's precisely what we must avoid. For if condemning someone to death positively benefits the citizens of the state, then the jury is no longer disinterested.

That's what is happening now in China. Many of the people executed there are having their organs harvested for transplant. Even worse, the recipients of those organs are wealthy foreigners who are paying, big time, in hard currency. And some of the money is being given to the judges in those cases.

Would you want to be tried for a capital offense in front of a judge who stood to make a lot of money if you were executed? Would you trust such a court? I sure wouldn't.

But even if there were no financial reward for the judge, and even if the organs were given away instead of being sold, and even if there were rules in place to prevent export, this would still be monstrous. Right now it is illegal to do this in the US, and I think this is a wise law.

This is a situation where we must balance evils. There is no good answer here, as yet. Thousands of people need transplants, and many of them die each year for lack of donors. Lots of people die in the US each year, but nearly all of them are not candidates for organ donation, for any number of reasons. I consider organ donation to be morally correct, and I am registered as an organ donor in case I die in circumstances such as to make me eligible. More people should do that.

But for the moment there aren't enough organs. So we have to balance the evil of several people dying who could have been saved by the organs of an executed felon, against the evil of perverting the legal system. I'm sorry, but I have to say that the latter is the greater evil. And I would think that even if it were me who died for lack of an organ.

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