Death Penalty Article
 

Can people confirm that I'm not seeing things? Have a really just read an article about refinements to the death penalty in a POKER magazine.

I'm not objecting to this on the merits of David's argument, but that it just doesn't belong in such a magazine. Mason has indicated on a number of occasions that this magazine was going to be of far higher quality (in terms of advice and strategy) than other poker mags out there. Granted, the advice in other publications is often second-rate or poorly-explained, but not once have I seen them veer so off topic with an article as in this case.

Ed arguments in defense of Barron's article last month eventually had me on his side. In this case, I very much doubt this will happen.

I still think that the content of most articles is top-notch. It's just a shame to see something so irrelevant included in the issue.

What do others think about it?

John

Re: Death Penalty Article
 

I have somewhat of a problem with the article because it starts out advocating a higher bar for imposing the death penalty on a convicted murderer, and then also advocates lowering the bar for standards of conviction in the first place. To my mind these are two separate issues.

Regarding the second and more important one as far as releasing possbile guilty perpertrators, we already have a jury system where all 12 jurors must agree that a conviction is justified beyond a reasonable doubt. A far higher standard than that used in civil suits. Plus there is the practical issue of the average intelligence and logical reasoning ability of jurors, which the OJ trial showed isn't very high (this of course cuts both ways).

So I probably am unwilling to change the conviction standard. However, I am more than willing to change the standard for imposing the death penalty so that it is seen to be used only in cases where there is virtual certainty that the conviction was correct. Such a standard might be either the testimony of 2 or more disinterested witnessess (or video evidence) or conclusive DNA evidence (micro-fibers now won't cut it).

Another approach is simply to narrow sharply the cases in which the penalty can be used, such as with those convicted of 2+ separate occasion murders, terroristic mass murder, espionage which leads to the death of government operatives, murder of witnesses, and posssibly for political reasons, the murder of law enforcement officers but which meets the above higher death penalty standards of DNA evidence or multiple witnesses/video evidence.

I think that it would well nigh impossible to convince our citizens to agree to a tougher conviction standard since the unanimous jury reasonable doubt standard has been followed to my knowledge for the entire history of the US, and is also partially enshrined in English common law from which our legal system derives a great deal.

On the subject of such initiatives originating here, I think that is a great idea, because the collective logical thinking of poker players here who have diverse backgrounds can be no worse than the position papers of supposedly elite think tanks of the left or right. And it would show that poker players do in fact contribute to society beyond simply making money and paying taxes.

Re: Death Penalty Article
 

"and then also advocates lowering the bar for standards of conviction in the first place."

No it doesn't. What did you read to make you think that?

Re: Death Penalty Article
 

It is implied when you talk about guilty murderers being set free as a result of a different standard, rather than it merely causing not as many convicted guilty murderers to be executed rather than incarcerated.

Re: Death Penalty Article
 

David's initiative is already part of our legal system, at least in some jurisdictions. For instance in the Scott Peterson trial, the jury was instructed that it must give a sentence of life in prison if it had any "lingering doubt" about his guilt. Apparently it didn't.

A related issue will soon be before the Supreme Court in Oregon v. Mazek -- whether or not the court is required to allow the defense to present evidence of innocence in the penalty phase. The purpose of this would be so that the defense can try to create lingering doubt in the minds of the jury.

Re: Death Penalty Article
 

No it's not. Read it again.

Re: Death Penalty Article
 

[ QUOTE ]
To meet the objection that too many murderers will be set free, I am going to do a little math. How horrible is it to send a murderer back on the street?

Now let's guess that in the next year, given the standards of proof we presently employ, 100 innocent dependents will be convicted of capital murder in this country. If we tightened those standards to avoid those convictions, how many guilty persons would also be acquitted? Many more than 1,000 I'd say. Let's use 1,200.

[/ QUOTE ]

Re: Death Penalty Article
 

This clearly doesn't belong in a poker magazine. And the idea of galvanizing a forum of poker players to support a specific political cause with one voice is absurd. Do you see why?

Re: Death Penalty Article
 

You misread my point.

Re: Death Penalty Article
 

[ QUOTE ]
This clearly doesn't belong in a poker magazine. And the idea of galvanizing a forum of poker players to support a specific political cause with one voice is absurd. Do you see why?

[/ QUOTE ]

Great...a poker PAC! (so that's why we love polls so much)

I'm not sure I am going to bite on this one. My read on David
is that he enjoys posting topics with especially inflammatory
subject matter, (see Psychology forum "God" posts et al.)

Whether it is to leverage his position of power–albeit in a
somewhat exclusive community–to promote his personal
philosophical viewpoints or to harvest the inevitable and
predictable debate to color the website is my question.

Whatever the reason and intention, the end result seems to
do little more than detract from the potential well of gaming
knowledge that is David Sklansky...are you getting bored with
monotone subject matter?

I own almost all of your books and the only problem I usually
find is the horrid scans of those cards (I work in publishing, ha!)
Other than that I treasure the knowledge.

If I would like deviation from a stream of poker theory and discussion,
I can download the latest Bill Fillmaff video.

Your (devoted, seriously) fan,

- ZEN

Re: Death Penalty Article
 

"David's initiative is already part of our legal system, at least in some jurisdictions. For instance in the Scott "Peterson trial, the jury was instructed that it must give a sentence of life in prison if it had any "lingering doubt" about his guilt. Apparently it didn't.

A related issue will soon be before the Supreme Court in Oregon v. Mazek -- whether or not the court is required to allow the defense to present evidence of innocence in the penalty phase. The purpose of this would be so that the defense can try to create lingering doubt in the minds of the jury."

In that case I think it is necessary to bring in the Horribleness Points Argument. The idea that there is a different risk versus reward ratio for death vs. life compared to innocence vs. guilt.

Re: Death Penalty Article
 

[ QUOTE ]
David's initiative is already part of our legal system, at least in some jurisdictions. For instance in the Scott Peterson trial, the jury was instructed that it must give a sentence of life in prison if it had any "lingering doubt" about his guilt. Apparently it didn't.

A related issue will soon be before the Supreme Court in Oregon v. Mazek -- whether or not the court is required to allow the defense to present evidence of innocence in the penalty phase. The purpose of this would be so that the defense can try to create lingering doubt in the minds of the jury.

[/ QUOTE ]

I thought the idea of residual doubt was well established and was definitely allowed in all jurisdictions since pretty much any mitigating factor can be used. Have not paid attention to the mazek case you mention tho.

David, I did hear a talk recently by a guy who was innocent and had his life spared by a judge applying a residual doubt analysis at his second death penalty trial. It took more to get him out of prison, but he was alive to get out later at least.

Re: Death Penalty Article
 

"I thought the idea of residual doubt was well established and was definitely allowed in all jurisdictions since pretty much any mitigating factor can be used. Have not paid attention to the mazek case you mention tho."

How come you never hear about it then? Can someone answer this for sure?

Re: Death Penalty Article
 

What effect would this actually have in practice? As previously stated jurys must convict on the basis of guilty beyond reasonable doubt. I have no hard evidence to back it up but I suspect that this is flexed slightly and (one would hope) that where the death penalty is concerned, the jury would consider any doubts very seriously before convicting (perhaps already applying David's standard or something close to it).

So why do innocent people get executed in the US? This is after all what is to be avoided as much as possible. Feel free to disagree, but my thoughts are:-
(i) false eyewitness testimony (either inadvertant or deliberate)
(ii) police corruption or incompetence (anything from planting evidence, "losing" evidence, not interviewing witnesses properly, not following up other leads)
(iii) jurys being misled by experts

This last one is particularly important. There have been many miscarriages of justice in the UK and US in murder, terrrorism and child abuse/death trials where experts have given what appears to be very compelling testimony. Jurys give tremendous weight to scientific experts. Current understanding is sometimes superseded and sometimes the experts are just wrong. A classic example was with early DNA testing, where jurys were told that the chances of an innocent person matching a sample were millions to one. Who wouldn't convict on that basis? However, because the test only looked at small chunks of the DNA, the true probability was only 1000's to 1.

What these factors have in common is that a jury may have no reason to question the evidence. On that basis, they would have no reason to add the caveat to the guilty verdict. The same innocent people would therefore still be sentenced to death.

Re: Death Penalty Article
 

well David, you may not hear about it because the coverage of trials doesn't get into details. If you get into the details of death cases you do hear about it.

Re: Death Penalty Article
 

I've advocated a nearly identical proposal to the one in this article. The main problem with this proposal is pragmatic: The justice system would not like admitting directly, of any "shadow of a doubt". So having this as a mitigating circumstance or a verdict of "guilty, with a shadow of a doubt" will not happen.

For political reasons, it would have to presented as a toughening of the death penalty conviction standard. The current verdict of "guilty beyond a reasonable doubt" would be kept, and a new verdict of "guilty beyond a shadow of a doubt" would be added. This is functionally equivalent to your proposal, but politically more palatable.

Re: Death Penalty Article
 

My feeling is that eliminating any "shadow of a doubt" would prevent so many executions that you might as well just outlaw the death penalty entirely. Which would be a good idea anyway, IMHO.

Besides, many of the people who are later exonerated from death row are found innocent due to technology that didn't exist when they were originally sentenced to death. In other words, at the time there was no shadow of a doubt in the jury's mind. So I don't see how this proposal would eliminate the same thing happening in the future as technology changes.

Finally, this logical argument would not work to sway those who think that the government has no right to take a life, even if the person is in fact guilty.

Re: Death Penalty Article
 

Mr. Sklansky,

While I can appreciate your intellect and your immense contributions to the world of poker and of profit gaming in general, I hardly think that an article like this is appropriate for a poker magazine. (And I probably have a greater fascination with politics and stronger ideological convictions than virtual everyone else in this forum.)

How about doing something relevant to 2+2's sphere of influence and reason for existing? You could lead a campaing to oust Arizona GOP Senator Jon Kyl (the pathetic asswipe leading the charge to get Internet poker banned in the U.S.). You could write intellectually sound yet accessible dissertations to discredit the anti-gambling extremism of the religious lunatics and the PC thugs who constantly [censored] up your country. In concert with my second suggestion, you could also propose and get passed ballot initiatives and legislation to liberalise gambling laws in the U.S at the local, the state, and the federal level, remembering that anyhing done by Washington, Beijing, or Moscow tends to be followed by other regimes in the world, for good or for ill.

The idea of galvanising American demographic groups that lean strongly towards civil libertarianism (whether they be social democrats like myself, radical Trotskyists (love or hate the guy, far-left parties that identify with Trotsky tend to be very anti-authoritarian) and anarcho-leftists, or libertarian conservatives, classical liberals, and anarcho-capitalists) is long overdue, so why not work towards this goal in a way that is pertinent to issues that directly affect and appeal to 2+2 and to your customers?

Re: Death Penalty Article
 

i am very curious to hear what other lawyers think about it. i havent practiced criminal law but i have litigated for ten years in NYC and can tell you for sure that there are so many corrupt judges on the take and know instances of the DA's office hiding exculpatory evidence in death penalty cases, which is required to be disclosed to teh defendant in NY law, that i completely changed my stance on teh death penalty. i used to be gung ho about it but now i have no confidence in it at all. not because of the theory behind it but in practice you can very rarely be sure that you are convicting a guilty man. my initial thought though is that perhaps there should be some evidentiary requirements, such as no one can get the death penalty where the primary identification evidence is the ID of the victim alone with no forensic evidence. perhaps other lawyers who have actually practiced criminal law can chime in.

I think that david's idea is an excellent one and would be happy to support it.

Re: Death Penalty Article
 

As for how I feel about the death penalty, I feel that humanity -- like everything that exists -- is too imperfect to ever make imposing irreversible sentences a just thing to do. (That being said, I'm disgusted that Maurice Duplessis' far-right, pro-Nazi Quebec government allowed French Nazi collaborators to flee to Quebec in order to escape De Gaulle's guillotine...And as somebody disgusted by the French interfering with the God-given sovereignty of the Vietnamese people, I don't even like De Gaulle much. :-P)

Re: Death Penalty Article
 

[ QUOTE ]
Can people confirm that I'm not seeing things? Have a really just read an article about refinements to the death penalty in a POKER magazine.

[/ QUOTE ]
Where was it claimed that this a "POKER magazine"? [img]/images/graemlins/confused.gif[/img]

Re: Death Penalty Article
 

I find it amusing that the couple of posters here who state
their disapproval for this type of article are being ignored
while the lemmings continue to fellate and discuss it.

I guess only BVT has the stones to defend his reasons for his
articles instead of replying only to those that blindly
perpetuate discussions that belong in OT.

Can I send in an article about how to create a very believable
fake id for next month's mag?

-ZEN

Re: Death Penalty Article
 

"That being said, I'm disgusted that Maurice Duplessis' far-right, pro-Nazi Quebec government allowed French Nazi collaborators to flee to Quebec in order to escape De Gaulle's guillotine"

You are implying that all Nazi collaborators were evil people who did evil deeds, which is not the case. Duplesis was a very good statesman. With him gone along with those right wing principles and religion too, Quebec has truly degenerated into a province (and maybe a state in the future) of Nationalist Socialist Fascists intent on screwing anybody that is not a Francophone.

We use to hang people in Canada which is a good solution to this traitorous menace too.

Re: Death Penalty Article
 

[ QUOTE ]
"and then also advocates lowering the bar for standards of conviction in the first place."

No it doesn't. What did you read to make you think that?


[/ QUOTE ]

[ QUOTE ]
For now I propose an initiative that urges the criminal justice system to add as a "mitigating circumstance" in the penalty phase of a first degree murder trial, a shadow of a doubt" concerning actual guilt. If such doubt exists, the penalty automatically becomes life in prison. (A different way to do this would be to eliminate the penalty phase altogether if we allow a verdict of "guilty with a shadow of doubt.")

[/ QUOTE ]

I originally read this to be a lowering the “reasonable doubt” bar. Evidently a shadow of a doubt is higher? I am asking a question, not arguing the point. From your post here it must be. You had me confused when I read the article (as usual).

Re: Death Penalty Article
 

[ QUOTE ]
No it's not. Read it again.

[/ QUOTE ]

Right, some guilty murders will be set free, because the standard would have been raised. Got it.

Re: Death Penalty Article
 

[ QUOTE ]
This clearly doesn't belong in a poker magazine. And the idea of galvanizing a forum of poker players to support a specific political cause with one voice is absurd. Do you see why?

[/ QUOTE ]

I don't see a Poker PAC and I'm not sure having 2+2 attached to a proposal would have much weight per se. But I do think 2+2ers could help write a hell of a ballot initiative based on the best of the political and philosophical discourse on some of the other forums.

~ Rick

Re: Death Penalty Article
 

Btw David, I think your idea of writing about various issues is a good one. Best wishes.

Re: Death Penalty Article
 

An Open Letter to the Two Plus Two Community:

David Sklansky’s piece regarding the ‘Two Plus Two Death Penalty Initiative’ is a thoughtful treatise using logic and probability to tackle a complex societal issue. Justice is problematic, as David is right to note; I have no desire in debating a scenario that has faced humanity for thousands of years, especially one upon which philosophers from Hammurabi to Aristotle to Hobbes to Barzun – along with literally thousands of other notables, as well as most all common men who have had the privilege to pursue free thought - have commented. I do, however, take issue with David’s notion that the Two Plus Two membership should channel their energy to obtain political goals under the name of Two Plus Two.

David ignores the reality of American politics by proposing that Two Plus Two opine on societal issues. In the United States, where specialization and particular expertise are valued more than in most societies, the public will not take seriously a think-tank composed of winning poker players – a group which, albeit talented, has no sensible connection to the social good that will be understood by the general public. Such endeavors foster resentment in the United States; those who succeed in one arena and try to channel that success into a ‘social steering committee’ are often seen as self-righteous know-it-alls who have little business commenting on things which, according to public perception, they know little about. Resentment fosters division and division fosters conflict; a think-tank based on pure intelligence is a recipe for failure.

Evidence of further misunderstanding can be found in David’s incorrect assumption that the populace would regard Two Plus Two social opinions as “irrefutable logic that would force almost everyone to say, “Well, of course that’s right! Why didn’t I think of that before?” Sklansky must realize that many in the United States and other nations – including those non-Western – value faith over logic and reason, with that faith guiding political and moral decisions. The beauty (and for some, the bane) of faith is that it requires no logic or proof; belief suffices. No matter how logical and rational David’s argument may be, those guided by faith will not be convinced. The guidance provided by faith on social issues – the death penalty, abortion, etc. – often trumps the most sound logic. Whereas the post-Enlightenment West has prided itself on reason, it has also provided freedom to those who would rather be directed by belief and conviction.

David has succeeded in determining that winning poker players are, as a whole, a group of very intelligent individuals; I need not list the names of respected professionals who have also made an indelible mark on business, scholarship and the arts as well as poker, nor need I list the names of the hundreds of talented players with whom I have played and fraternized over the last few years. However, intelligence and logical superiority are simply not valued in politics to the degree which David seems to believe; if that were the case, our leaders both political and religious would be chosen with a premium on intelligence, which is only a small component of desirable leadership, and one that, given the proper circumstances, can be unnecessary altogether. This extends to demonstrations of logic and numerical evidence; if the American people – largely an innumerate populace, compared to the Two Plus Two membership - valued graphs, charts and statistics, the public would demand successfully that men like Ross Perot and Bill Gates lead our nation.

One defies the reality of modern American behavior when one thinks that a country filled with people who mismanage credit card debt, rent when they should buy, buy when they should rent, and finance and refinance under unfavorable terms will grasp without reservation a terribly complex (when one includes factors such as upbringing, prior opinions/experiences and a whole host of other forces) social argument based on logic and probability. For those of us who understand and utilize daily the science of gambling, we may be sympathetic to an argument proposed in this style; unfortunately for David, we don’t represent the general populace of any country, especially the United States.

If the editors of Two Plus Two want to pursue political action, I recommend that they form a partnership with an existing group and encourage dual membership, although such a relationship would likely dilute the overall effectiveness of both communities . If Two Plus Two forms a think-tank that is made solely of Two Plus Two members, it must be promoted without any association to the Two Plus Two community. Two Plus Two is a successful community that must remain focused on its original mission to advance gambling/poker and related strategy; any offshoots of Two Plus Two must at least be bridged with actions smaller in scope that lead eventually to an independent body with its own legitimacy and identity. Any other course will hinder the work to which so many of us have dedicated ourselves over the years.

MK Tabor
mktabor@gmail.com

Re: Death Penalty Article
 

This is not my personal view. But opponents of the death penalty might rationally choose to oppose David's proposal if they feel that its rejection significantly increases the chances for a complete ban of the death penalty. They would be choosing ultimatum over compromise.

Re: Death Penalty Article
 

I have as much interest in hearing David Sklansky talk about the death penalty, as I do in hearing Sean Penn talk about the War in Iraq. Seriously, this sort of garbage falls from the same tree as Hollywood 's incredible narcissism, and Bono's decision to behave like a world leader worthy of a seat at Davos to blather on about all issues relating to poor people in the third world.

PS David--since you have evidently figured out the precise definition of "shadow of a doubt", please tell me how many angels can dance on the head of a pin. I've been thinking it's 4.8, but since you are the authority on quantitative analysis, I know I can count on you to correct me by 1 or 2 significant digits.

Re: Death Penalty Article
 

I have two major problems with David's proposal.

1 (most important). It won't fix the problem.

I'd argue that the wrongly convicted are actually more likely to be "no doubt" than "shadow of a doubt." I cannot quantify this to any reliable degree, but it's clear that many cases involving the wrongly accused hinge on: 1) mistaken witness ID; and/or 2) prosecutorial/investigator misconduct.

Imagine a case where an eye-witness swears he saw the defendant kill a guy AND the defendant's blood was found at the scene. That's a "no doubt" kind of case. But if the eyewitness was lying and the cops planted the DNA, an innocent dude will certainly fry.

Conversely, in an case tried on the up-and-up, there's almost always SOME doubt, because the prosecutors turn over all exculpatory evidence, eyewitnesses are imperfect, etc.

So, I'd argue that David's solution could make the guilty more likely to be spared the death penalty, while the innocent could become a greater share of the wrongly executed--exactly the opposite of the intended effect.

2. (less important). David's solution greatly magnifies the possibility of a "compromise verdict" in the jury room. If a jury is split between guilty and not guilty, it's easy to imagine that they might compromise on "guilty with a shadow of a doubt" rather than completing their deliberations as they should. Avoid such compromises is why penalty phases are separate today.

Re: Death Penalty Article
 

"PS David--since you have evidently figured out the precise definition of "shadow of a doubt","

I'm not going to debate this subject until I find out more about whether it is alrady in the criminal justice system. But the above comment was so stupid that I had to chime in. Because juries are already expected to make decisions beyond a "reasonable doubt", an imprecise term that they are given some help with. Similarly for a new term like shadow of a doubt.

Re: Death Penalty Article
 

Both your comments are extremely farfetched and almost certainly wrong. I'll elaborate if it becomes relevant.

Re: Death Penalty Article
 

"Seriously, this sort of garbage falls from the same tree as Hollywood 's incredible narcissism,"

Except actors can't beat the people they are trying to influence on generalized thinking tests.

Re: Death Penalty Article
 

This whole idea assumes "life in prison" for an innocent person is better than than the death penalty.
Most would agree but i certainly dont.At the very least i would give life the same HPS as execution.

Re: Death Penalty Article
 

Possibly great idea:

[ QUOTE ]
How about doing something relevant to 2+2's sphere of influence and reason for existing? You could lead a campaing to oust Arizona GOP Senator Jon Kyl (the pathetic asswipe leading the charge to get Internet poker banned in the U.S.). You could write intellectually sound yet accessible dissertations to discredit the anti-gambling extremism of the religious lunatics and the PC thugs who constantly [censored] up your country. In concert with my second suggestion, you could also propose and get passed ballot initiatives and legislation to liberalise gambling laws in the U.S at the local, the state, and the federal level, remembering that anyhing done by Washington, Beijing, or Moscow tends to be followed by other regimes in the world, for good or for ill.

The idea of galvanising American demographic groups that lean strongly towards civil libertarianism (whether they be social democrats like myself, radical Trotskyists (love or hate the guy, far-left parties that identify with Trotsky tend to be very anti-authoritarian) and anarcho-leftists, or libertarian conservatives, classical liberals, and anarcho-capitalists) is long overdue, so why not work towards this goal in a way that is pertinent to issues that directly affect and appeal to 2+2 and to your customers?


[/ QUOTE ]

Re: Death Penalty Article
 

That has got to be the dumbest response to a very intelligent article I have ever seen. I'm sorry David.

Re: Death Penalty Article
 

While I was in college my law teacher actually gave beyond a reasonable doubt a percentage as along with all other forms of guilt for other cases and forms of law. Is this not the norm?

Re: Death Penalty Article
 

Just for the record, I am an expert on criminal law. Sklansky's pseudo-procedural protection ignores 30 years of death penalty jurisprudence, and general jurisprudence which has sought to get away from amorphous, subjective standards. Is the "shadow of a doubt" more or less than a "scintilla" of doubt? What about a "modicum of doubt"?

Sorry, but its just a ridiculous proposal. The problem with the death penalty is not that the standard allows for too much error, but rather that the financing system for legal aid provides incompetent counsel to capitally charged defendants. No procedural or substantive change can solve that problem. It's a simple problem of lack of financing.

You want to solve the "bare innocence" problem in death penalty cases? Pass a state law that requires prosecutors to designate a case as a capital crimes case, requiring approval from the state AG to bring. Then, if the case is approved for capital prosecution, have the state/county fund a serious legal defense costing serious money. Not necessarily OJ Simpson dream team stuff, but the type of defense that would be put forth by the Federal Public Defender's office.

Local counties and the state would be charged the pro-rata cost of the defense, which would have the effect of causing prosecutors to think twice before deciding to charge a capital crime. This would result in greater uniformity in prosecutions, and would additionally reserve the death penalty cases for those in which the crime was most heinous and/or the proof was most uncontestable.

Re: Death Penalty Article
 

If your undergrad "law professor" was assigning percentages to the reasonable doubt standard, he is an idiot. The only standard subject to a percentage formulation is the civil liability standard of proof known as "more likely than not"--and that is usually described as 51%.