Old time grudges will die so slowly… In favour of death penalty #troydavis

In a previous post, I noted my discomfort at being on the pro-death penalty side of the debate.  On average, an abolitionist will be more intelligent, more well informed, and more rational than an advocate of the death penalty.  Those of us on the advocate side are more likely to be pitchfork-wielding weirdoes, spouting mantras of ‘an eye for an eye’ and ‘deep fry his ass’.

If I had the slightest excuse to change sides, I would.  I was an abolitionist until my final year of university and I remember the day and the hour that I changed positions.  It was a horrifying moment: up until that point, I thought all advocates were pitchfork-wielding weirdoes and, yet, the foundation of the abolitionists argument was utterly flawed, and the advocate was — despite most of us having utterly ridiculous arguments — ultimately correct.

Abolitionists misconceive life imprisonment.  They argue that a person imprisoned can be released (but a dead person cannot be revived) and that life imprisonment is more humane than death.

You can never repay a person the time they’ve spent in prison.  Imagine that a person’s innocence is proven after they’ve spent two decades in jail: how do you give that person their time back?  How do you heal the psychological damage imprisonment does to a person?  Their family might have moved on, some might even have died.  The question which ought to be asked is: regardless of whether you’re abolitionist or retentionist, why is it possible for innocent people to be found guilty of crimes they didn’t commit?

Further, what sort of life is life imprisonment?  If a convicted person is treated for illness, it extends the duration of their punishment.  How can we not find this barbaric?  It’s a basic dignity that we do not punish people indefinitely, and yet abolitionists promote it: people convicted of certain crimes should be imprisoned for an indefinite period of time, prevented from euthanising themselves, where their entire life shall be suffering for a past crime.  It’s inhumane.  John Stuart Mill said it was akin to being ‘embalmed in a living tomb’.

Abolitionists have false consciousness about life imprisonment.  Life imprisonment is the death penalty performed slowly.  The felon dies of indefinite incarceration following a lengthy period of time in which their liberties were curtailed and which radically reduced their quality of life.  It is flatly barbaric: we treat animals with more dignity than we treat people.

But, as a retentionist, I am confronted by issues like the Troy Davis one.  Davis’ case strikes at some fundamental pillars of our justice system, but there are a few introductory notes.

It is not clear that Davis was innocent or that he should have been found not guilty.  A lot of commentary has asserted that he was innocent of the crime: but the people voicing this point of view weren’t there.  If they knew for a fact that he was innocent, they should have appeared at his trial.  It would have saved a lot of bother.

There is nothing persuasive to say that he should have been found not guilty.  There have been accusations that the police coerced witnesses, but these haven’t been proven.  Davis ran the gamut of appeals and the conviction was upheld.

Both paragraphs adopt a view of procedural justice: if the correct procedure has been followed, the decision — regardless of how it matches ‘reality’ — is just.  I’m not particularly a fan of it for a variety of reasons.  Not least: a proceduralist account says that a person is guilty only if they have gone through the process of being found guilty, not only if they committed a wrong.

But our justice system is built on the principle of procedural justice.  It prevents inquisitorial-style trials and raids of your home without warrant.  We don’t let the State determine facts by hook or by crook: if evidence was obtained without going through the correct process, it is inadmissible, even if it would mean a guilty person would walk free.  Batman is the antithesis of procedural justice.

The last two paragraphs present a serious tension in the way we should view the justice system.  In the ideal world, the procedural view would give the same result as the absolutist view: the procedure ensures (not coincidentally or accidentally) that all guilty people and only guilty people are punished.  But we don’t live in an ideal world, so there is a real predicament.

From a procedural point of view, Davis was guilty.  As he was found to be procedurally guilty, it was just and appropriate for Davis to be executed.  If it can be proven that the police behaved inappropriately in order to obtain a guilty verdict, they should be tried for Davis’ murder.

My concern in that the procedure for finding and appealing guilt in the US is problematic.  In this case, where it seems that so much doubt can be found — even if we only accept a fraction of what the uncritical champions of Davis assert — how could a guilty verdict stand?  Either there’s something rotten in the state of Denmark or the media is not reporting the case accurately (maybe a bit of both).

In the same week that Davis was executed, Lawrence Russell Brewer was executed for taking part in a gruesome murder motivated by white supremacist crap.  Brewer was unrepentant, admitted his guilt, and took pride in his act, stating that he’d do it again.

First, why didn’t Amnesty champion this guy’s right to life?  It’s harder to sympathise with the abolitionist’s argument when there are clear cut examples of guilt where the only humane punishment is execution.

Second, cases like Davis’ make for good intuition pumps, but cases like Brewer’s create unnerving ambiguity.  If abolitionists want to make a persuasive argument against the death penalty, it can’t be tied to an individual case.  For every case like Davis’, there’s a case like Brewer’s as rebuttal.

It was also pointed out to me that Davis was put on suicide and self-harm watch (SASH watch) prior to his execution.  I was told that this was hypocritical and insane: why would you ensure that a person was kept healthy and well just so the State could execute them?

My case above should show us why: my sort of retentionist position is vastly different to the retributivist model of an eye for an eye.  There’s no gloating or chest thumping when I argue that a person should be executed instead of being imprisoned indefinitely.  My position — and I wish it were the position of all retentionists — is one which promotes the dignity and civility of our justice system.

Abandoning a person to execute themselves, failing to use SASH watch, is to take a barbaric view of the process.  This isn’t ‘death by any means possible’; this is death at an allocated hour by an allocated method, up until which you have the opportunity to appeal and to be treated with the dignity and respect we afford all criminals.

Cases like Davis’ challenge my view of the death penalty, but it is clear that the death penalty is more humane and more just than the alternative.  Although most retentionsts advocate crude and brutal forms of the argument, nuanced and reasonable retentionists should attempt to persuade abolitionists that all reasonable people are concerned about the humane and ethical punishment of criminals.  Neither side has a default rational claim on the moral high ground, and death penalty remains a genuine ethical dilemma.

People, they don’t mean a thing to you… Manne and the Media #auspol #ausmedia

In the concluding passage in his Quarterly Essay, ‘Bad News’, Robert Manne said something which struck me as rather odd…

‘The issue is rather the capacity of News Limited to influence the opinions of the vast majority of less engaged citizens whose political understanding is shaped directly by the popular newspapers and indirectly through the commercial radio and television programs which rely on the daily papers for the content of their programs and, more deeply, for the way they interpret the world.’ [Source: Manne, 'Bad News' Quarterly Essay p112]

The sentence is characteristic of the brutal use of language in Manne’s essay, but hinted at an assumption lurking unchallenged beneath Manne’s essay: ownership of a newspaper is a big deal because it gives you enormous power.

The Government announced an inquiry into Australian print media (including online media) (brief commentary by Wendy Bacon here).  The Australian Greens have been the loudest voice shouting for an inquiry, resulting in the extremely ungallant performance by Bob Brown on Lateline this week.

When I read the passage in Robert Manne’s essay, I wondered: ‘We’re spending how many hundreds of thousands of dollars on this inquiry… and for what?  For whom?’

I called my family today and asked them: ‘How often do you read a newspaper?’  Neither of my brothers do.  My mother skims through the newspaper at work.  Not living in the city, their local newspaper is utter rubbish.

There has to be some recognition that those of us who consume gallons of sugary, sugary news goodness each day aren’t typical of the average Australian.  Manne’s essay reveals how indulgent we’ve become: the newspapers are important because a very small section of the community (which includes Manne and, probably, you and me) read them.  This inquiry is a vanity project for the Greens: it will cost a not insignificant amount and will result in shockingly little.

We are the goon squad and we’re coming to town… On Manne’s Quarterly Essay #auspol #ausmedia

Finally!  Some time to write!

Adam Brereton wrote an exciting piece on New Matilda about Robert Manne’s Quarterly Essay: ‘Bad News: Murdoch’s Australian and the shaping of the nation’.  I must admit that I was going to skip this edition of QE, because I rarely find Manne capable of pushing beyond assertion into analysis.

But Brereton made the whole thing sound like a delightful trainwreck:

‘On balance, Bad News is an essay worth reading, if only to confirm the things you probably already thought about The Australian, or to laugh at Manne’s constant whining about objectivity, responsibility, sober discourse and apologising for past wrongs. It’s not for you, at any rate, but for the professional politicos. It’s Manne’s passionate Nietzschean cry to the staffers and journos who peddle our daily news: “The Oz is dead! Now let me convince you why.’ [Source: Brereton, 'How Manne Would Run The Oz', New Matilda]

Be warned, gentle viewer!  Do not be seduced by Brereton’s siren-song, ‘Bad News’ is a difficult read.

It’s here that I have to pause: I’m conservative and happily reveal myself to be right-wing.  What could I possibly say which couldn’t be easily dismissed as: ‘Oh, Mark!  Of course you would say that “Bad News” is terrible and Manne is a dreadful essayist.  You’re one of those conservative, right-wing types who kick puppies, eat babies, and chide the Left for preferring ideological whining over substance.’

The problem you raise is a good one and would influence the way I write about Manne’s article.  Am I trying to convince people who disagree with me?  Am I trying to reassure people who agree with me?

Manne, very obviously and very clearly, never bothers to enjoy a similar pause.  The result is a wildly incoherent, sprawling mess of unanalysed assertions and contradictions.  But, of course, you expect me to say that.  I’m conservative.

So let’s try this a different way.  Imagine a person claims that we should privilege expert analysis and objective reason over uninformed opinion.   If that same person were to dismiss expert analysis and objective reason when it became rhetorically convenient to an argument, how should you respond?

Lo and behold, Manne argues that by rejecting Science and Reason, The Australian had ‘broken with the values lying at the very centre of the Enlightenment’ (p50).  Heavy stuff.  And as everybody knows, one certainly shouldn’t break with values lying at the very centre of the Enlightenment (cough, Isaiah Berlin… Nietzsche.. cough).

So when Manne asserts that The Australian is running a campaign against the Greens (‘The Greens: “They are hypocrites; they are bad for the nation; and they should be destroyed at the ballot box’), Robert Manne accepts the objective analysis conducted by Media Monitors and retracts his claim that The Australian is trying to destroy the Greens.

Oh, wait!  He totally doesn’t!

‘Mitchell hired an “independent firm,” [scare quotes Manne's] Media Monitors, to prove the question of anti-Greens bias at the Australian.  Media Monitors found the Australian‘s coverage of the Greens only “slightly unfavourable.”  I conducted my own study. [Emphasis mine]  I found that in the month following the election the paper published fifty articles on the Greens that were hostile and one that was friendly. [Source: Manne, 'Bad News', Quarterly Essay, p101]

Manne cites his own ‘studies’ routinely throughout the book.  Surprise: they all confirm Manne’s opinions.  They all consist of downloading all the articles which mention a term, then ‘categorising’ them according to Manne’s opinion.  Enlightenment values!

Worse, there were times when Manne’s argument was so strained and tortured that the position he was denouncing became significantly more persuasive.  Like many things, I really don’t know how to form an opinion about the Iraq war.  I don’t think I have enough information.  I don’t even think I have the right language in which to discuss the issue.  But Manne has strong opinions.  In one of the early chapters, he outlines the argument of the war-mongers: ‘When we fought in Kuwait back in the ’90s, Saddam had biological and chemical weapons; Saddam has gone rogue and wouldn’t be deterred from attacking Israel or Kuwait by the superior force of the US; there is a good chance that Saddam would assist terrorist networks to attack the West; ergo, we should remove Saddam.’  Manne, at no point, gives a convincing rebuttal of any of that.  He wears a strangely positivist hat when he suggests that, because invading forces couldn’t find the weapons, the weapons never existed.

I repeat: I have no idea which answer is best when it comes to the Iraq war, but by assuming a sackful of rhetorical points uncritically, Manne manages to make the case for the Iraq war all the more persuasive.

He finds himself in similar problems when discussing Media Watch.  I think Media Watch was brilliant in the days of David Marr.  Marr is an ideologue.  Marr sometimes makes errors in his reasoning.  But, of all things, Marr makes serious arguments which demand serious consideration from those of us on the Right.

But when Manne presents his argument that The Australian ran an orchestrated campaign against Media Watch (and, in particular, against Marr), Manne somehow makes The Australian seem justified and sane.  Manne appears to suggest that, when a newspaper is criticised by Media Watch, the newspaper should consider itself chastened by the authorities and cease its sinful ways.  The Australian‘s crime, apparently, was to run four (yes, a whole four!  That’s like nearly a billion) articles stating that Media Watch erred in a story which criticised it.

Worse, it made Media Watch smell a little bit rotten: apparently, Janet Albrechtsen didn’t get the job on Media Watch because she was ‘wooden’ — a fact divulged by the candidate who got the job, David Marr.  So much for confidentiality.

Manne appears to assume that his audience already agrees that The Australian is the worse thing since arsenic bread and that they are looking to him to provide rhetorical points to bolster their claims.  Thus, his language when describing opponents becomes unabashedly negative.  Ian Plimer isn’t a scientist: he’s an ‘arch climate-change denialist’ (p49; but was earlier acknowledged as a geologist on p42 after a complaint that debate was hijacked by ‘non-scientists’).  Similarly, on p52, Bob Carter is a ‘denialist geologist’.  The scientific credentials of Bob Brown, Tim Flannery, and Al Gore are never mentioned.  After the quote by David Marr reveals why Albrechtsen didn’t get the Media Watch gig, Manne has some lovely things to say about the merit of her appointment to the ABC Board:

‘Shortly after Marr’s retirement, as it happened, Janet Albrechtsen was appointed by the Howard government to the ABC Board.  In cultural struggles of this kind it is certainly valuable to have friends in high places.’ [Ibid. p31]

Because conservative women can’t be appointed to things based on merit, right?  Nah, it was totally culture wars.

Worse, Manne takes no time to work out precisely who his subject is: part of the essay feels like it’s about Chris Mitchell (in the style of David Marr’s Quarterly Essay on Rudd); then it slides to being about the paper generally; then it’s about the Murdoch media empire.  ’Slide’ is definitely the correct word to describe Manne’s style: after a brief introduction, we start on the issue of Keith Windschuttle’s attack on Indigenous history.  There’s no sense of where the discussion is going, but we somehow slide to a fruitless discussion about The Australian trying to… something.  Conduct a debate about Indigenous history privileging the side of denialists?  Maybe, but at no point does Manne go down my line of arguing that this sort of rubbish doesn’t belong in public discussion.  Instead he leaves the section with:

[Chris Mitchell] gave [Noel] Pearson his national voice but was also crucial in the making of Keith Windschuttle, the writer and editor most responsible for the return of old racial attitudes which the nation, since the time of Stanner and Rowley, had struggled to transcend.  [Ibid., p14]

Confusingly, Manne takes another crack at The Australian and its treatment of Indigenous issues in another convoluted mess of a chapter later on.  The result is two very confused and confusing pieces which don’t set out clearly the charges against The Australian, but slide around in innuendo and insinuation.

The essay is painful to read.  There is beauty neither in the language nor in the thoughts they struggle to convey.  It is impoverished of ideas and insight: nothing is said which isn’t already believed by critics of Murdoch.  The result in an essay which can be easily dismissed with: ‘Yes, Robert.  Of course you would say that.  You’re an ideologue.’

But the awfulness of the essay goes beyond that: at times, there are moments when you sincerely believe that the essay is going to tackle something interesting.  Manne references Murdoch’s statements about climate change: giving the Earth the benefit of the doubt.  Manne asserts that Murdoch’s papers say whatever Murdoch wants them to say, so why is there a massive gap between the views of Murdoch and his press?  Manne won’t say.  Further, what is the role of the newspaper?  Is it to provide a list of facts which constitute the news, or is it to cultivate a public conversation?  Are Fairfax and the ABC biased?  Manne never says.

What Manne’s essay does confirm, at least for me, is that we’re not having a discussion about the media in Australia: we’re having a discussion about Murdoch.

Totally off the topic: I totally thought the lyric in Fashion was ‘We are the bourgeois and we’re coming to town’.  Turns out I was incorrect.  There must be something Rorschachy going on…  I’m seeing the political struggle in nonsensical lyrics.  Please send help.

My memory is hazy, we’re moving away… Ideology and #refugees in #auspol

When it comes to asylum seekers and refugee policy, I just don’t know.

On the one hand, it is difficult to imagine a more vulnerable group of people than asylum seekers.  On the other hand, are those who arrive by boat more entitled to have their protection claims assessed than those who are waiting in refugee camps?  On the other other hand, are those in competition?  Why do we subtract those who come by boat from those we take from overseas?

I just don’t know.

What I do know is that we are still not having a rational debate about asylum seeker policy.  We have two sides of this ‘debate’ who are flatly disinterested in recognising the merest possibility that any disagreement could be the product of rational thought.

On the one hand, we have hate-mongers.  We have people who live in utter flood of Muslims descending into Australia, like a giant red arrow in a Liberal Party advert.  We have people who just worry about losing control of their privileged state.

On the other hand, we have people who will never be satisfied whatever the government does.  We have groups who exist for the sole purpose of complaining that the government is evil and inhumane towards the vulnerable.  We have people who cynically play on the word ‘detention‘, causing confused debates about children being in detention centres.

On yet another hand, we have people who think temporary protection visas and offshore detention centres deter people fleeing for their safety, because push factors don’t exist.  On a different hand entirely, we have people who think that if you can make it to Australia, you should be automatically granted a visa after fourteen days (unless you admit to being a security or health risk), because pull factors don’t exist.

In short, we have a lot of hands all of which are clutching at the same scarce fact-straws.

Nearly every week, Q&A discusses asylum seekers.  For the eleventy dozen weeks the show has been on air, nobody’s really said anything significant to change the debate.  Why?  Because people are far too interested in the sound of their own opinions in the air and aren’t at all interested in what anybody else has to say.

It’s not even a problem unique the the asylum seeker debate.  From carbon taxes to water management, people are only interested in voicing their own opinions rather than engaging in serious, critical, analytical discussion of another person.  To do so would be to admit that they were capable of stringing a coherent thought together.

It’s why nobody’s asked: ‘Hey, if Howard’s asylum seeker policy stopped the boats and he thought his policies were working, why did he blow millions of dollars constructing the Christmas Island Detention Centre?’

It’s why nobody’s asked: ‘Hey, why do so many people accept the views of activists uncritically?  Don’t activists have an interest in keeping the public outraged at all times?’

It’s why nobody’s asked: ‘Hey, why do so many asylum seekers need to resort to people smugglers in order to get refugee status?  Shouldn’t the international community be emptying the refugee camps as quickly as possible?’

It’s why nobody’s asked: ‘Hey, why should people smugglers determine Australia’s humanitarian intake?  Shouldn’t Australia be able to determine its own humanitarian intake?’

There’s nothing flatly irrational about any of the above questions.  Nobody asks them because they acknowledge a fabled Middle Ground where complex policy issues aren’t all black and white, where there aren’t goodies and baddies, where positions can’t be summed up in three-word slogans or in slacktivist e-mail campaigns.

For those who want to have a serious debate about these things, read the Centre for Policy Development’s A New Approach. I don’t agree with everything that they say (and I worry that there’s very little input from a conservative perspective), but at least I have to think about why I disagree.  It’s nuanced positions like the CPD’s — and not the clanging of the ideologues — that will eventually put these issues to rest.  People should either engage in serious debate and discussion, or pipe down.

A crowd has gathered in black and white… The Language of Law #auslaw #auspol

For those of you who complain about the state of scientific journalism, spare a thought for those of us who crave good legal journalism.

There appears to be some rule in journalism that you don’t report cases as two sides of a discussion engaging with each other to work out what the law should (or ought) to be.  Perhaps it’s because it’s too difficult to communicate nuance, subtlety, and thoughtfulness to the mass audience who crave blood sports.  Perhaps it’s because explaining complex legal arguments about Executive Power, about the Rule of Law, about the nexus of domestic and international law, and about legislative instruments won’t sell newspapers.  Perhaps it’s because the same guy who files the stories about High Court cases is the same guy who also has to write and file stories about federal politics, state politics, higher education, sport, and travel.

Whatever the reason, the media has let us know that Plaintiff M70/2011 v Minister for Immigration and Citizenship; Plaintiff M106 of 2011 v Minister for Immigration and Citizenship [2011] HCA 32 was about a stupid and evil/incompetent (strike out as appropriate given your political persuasion) government and the right-thinking, just and pure moral crusaders.  The High Court, in its magnificent wisdom, chose the winning argument which any person in the street could have told you was obviously the correct answer.

Except this isn’t how our legal system works at all.  The High Court was answering a question of law: what is the proper construction of a piece of legislation?  There were at least two credible readings of the legislation, one of which the majority of the High Court found more persuasive.  There was at least one other reading which the Government and one of our finest legal thinkers, a High Court judge, found more persuasive.  To say, as many appear to say, that the Government had rubbish legal advice, that the Government knew what it was doing was illegal, &c., &c., is to also say that one of the people on the High Court does not belong.

Further, the decision was meaty and intricate.  While the media portrayed it as a morality play, the decisions were all based on very technical, amoral reasons.  What is the proper construction? What power was the Minister using?  Instead, we got ‘The judges agreed with the good refugee advocates and destroyed the evil Government’s plans.’  Remember, the Court did not say that moving people to Malaysia was unlawful.  They said it was unlawful to do it in this particular way.  But there’s no time for meaty and intricate when there are a hundred other stories about scandals/breasts/celebrities which might distract the reader.

I don’t have a hat in the ring.  I would have been happy with either decision.  Following the case closely, I was awestruck by the awesomocity of our legal system.  This was a case where a statutory body (the Human Rights Commissioner) was able to intervene in a case against the Government.  This was a case where the Government helped the people suing it to more precisely state its case (check out the transcripts from the first day; understandably, the plaintiffs seem a bit all over the place: it was even unclear who precisely the plaintiffs were).  This isn’t mere democracy at work.  We have a political system where the parties are genuinely interested in just and lawful outcomes.  This should inspire pride.

Instead, we’re down in the muck with braying gloating on both sides of politics.  It was a fight the Government lost.  Stupid Government.  When are we going to get a better one?

Edit: After writing this, I watched tonight’s episode of The Drum.  Steven Cannane summed up the problem perfectly: ‘So, Cassandra, was the Government incompetent or did it just get bad legal advice?’