Wednesday, November 16, 2011

Some clarifications on my death penalty post (originally posted at Triablogue)

My argument is actually somewhat different from what you are describing. As the death penalty is now practiced in America, we take extra precautions with it, in virtue of its irreversibility. As a result, two advantages of the death penalty over life imprisonment are compromised. First, while most people think the state pays less by using the death penalty than it does in life imprisonment, the fact is that when litigation costs are factored in, execution is more expensive. Second, the deterrent effect is diminished, since not only does the criminal expect to get away with it (otherwise, he wouldn't commit the crime), but also, should someone actually be tried and convicted and sentence to death, death is hardly immanent, because the murderer can expect a long appeals process which is going to delay the execution for many years, assuming the execution occurs at all. This is probably the reason why crime statistics in states without the death penalty are no worse than in states with it. Having the death penalty just means that you might be sentenced to death, and then after 20 years or so, after your appeals run out, you may get executed, unless, of course, they decide not to execute you, which they might very well do.

So, it looks like the only way to make the death penalty do what we hope it will do is to "fast-track" it, eliminate the appeals, and make execution immanent for those convicted of capital crimes.

Of course, the irreversibility of the death penalty is an argument against its very existence. However, where we do practice the death penalty, we seem to concede an important point to its opponents, namely, that there should be a lot more appeals when we execute than when we imprison, because we can release exonerated prisoners, but not people we have executed. The result is that the two benefits of a death penalty seem to be either eliminated or greatly weakened.

So, if we have a death penalty that does what we want it to do, we have to accept the risk of executing innocent people and fast-track the death penalty. We have to not only risk executing innocent people, but we also have to increase that risk by curtailing the appeals process.

To do that, I think we have to abandon the idea that the execution of an innocent person is a more tragic failure of justice than the failure to punish a guilty person. I don't want to go there. But in order for the death penalty to have the advantages over life imprisonment that pro-death-penalty people think it has, it seems as if we have to go there.

19 comments:

PhilosophyFan said...

I did skip over the first part of your argument; mainly that was because I have not really thought a lot about these issues here.

I just don't have the real world knowledge of how the whole legal process might be required to play out in terms of time and resources.

That said, I think Sociology has shown that you are correct in saying the death penalty (DP), to really be effective as a deterrent, must be swiftly carried out. Now, even if we could fast track the DP and cut out appeals, I am not sure the first trial would happen fast enough. Thus, no further argument may be needed. The case would be strong against the DP on deterrent grounds.

On the other hand, does anyone wish to try and provide evidence that the DP as it stands really is a deterrent? Also, maybe 10 years is too long but 1 year isn't.

I will try and research myself later. What I have said about the DP and sociology above I read from Rodney Stark's Sociology textbook, which I no longer own.

PhilosophyFan said...

Oh, but I forgot to also add: Life sentences give strong incentive to escape prison, and ample opportunity for any murderers to try and do so. So, there may be people better off dead only in the sense that if they escape they might 1) have the desire to kill more 2) not have the desire, but be in a situation of fight to the death versus go back.

Also, some prisoners thrive in gangs in prison. They can do real damage inside and outside (e.g., killing prison guards, ordering hits on the outside, raping, etc).

mpg said...

Great post.

@PhilosophyFan - even if your counter from the incentive to escape worked, the advantage of the life imprisonment is that the possibility remains that the authorities can recapture them and lock them away again.

Plus, you could have life imprisonment in isolation removing all of your other hypotheticals. Nothing in a life prison sentence requires that the convict spends it with the rest of the prison population.

Crude said...

I'm coming to this one late, but...

What do we do with someone once he's in prison for life? What sort of life should we be giving him?

PhilosophyFan said...

"Of course, the irreversibility of the death penalty is an argument against its very existence"

Isn't there, in a sense, a practical irreversibility of most life convictions? It might happen, for, 0.01% of convicts. . .I've seen a few TV shows in fact where, while the prosecution basically knew as much that the guy was innocent, they just didn't release him and admit they were wrong.

"Plus, you could have life imprisonment in isolation removing all of your other hypotheticals. Nothing in a life prison sentence requires that the convict spends it with the rest of the prison population."

If this were practical on a large scale, I would wonder why rape and murder and gang influence to the outside world still occur so much.

dudleysharp said...

Of course the death penalty deters.

All prospects of a negative outcome deter some. It is a truism. The death penalty, the most severe of criminal sanctions, is the least likely of all criminal sanctions to violate that truism.

1) 27 recent studies finding for deterrence, Criminal Justice Legal Foundation
http://www.cjlf.org/deathpenalty/DPDeterrence.htm

2) "Deterrence & the Death Penalty: A Reply to Radelet and Lacock"
http://homicidesurvivors.com/2009/07/02/deterrence-and-the-death-penalty-a-reply-to-radelet-and-lacock.aspx

3) "Death Penalty, Deterrence & Murder Rates: Let's be clear"
http://prodpinnc.blogspot.com/2009/03/death-penalty-deterrence-murder-rates.html

4) This is out of date, but corrects a number of the misconceptions about deterrence.
"Death Penalty and Deterrence"
http://homicidesurvivors.com/2006/03/20/the-death-penalty-as-a-deterrent--confirmed--seven-recent-studies-updated-61204.aspx

5) "The Death Penalty: More Protection for Innocents"
http://homicidesurvivors.com/2009/07/05/the-death-penalty-more-protection-for-innocents.aspx

dudleysharp said...

Of course the death penalty deters. A review of the debate.
Dudley Sharp

1) Anti death penalty folks say that the burden of proof is on those who say that the death penalty deters. Untrue. It is a rational truism that all potential negative outcomes deter some - there is no exception. It is the burden of death penalty opponents to prove that the death penalty, the most severe of criminal sanctions, is the only prospect of a negative outcome that deters none. They cannot.

2) There have been 27 recent studies finding for death penalty deterrence. A few of those have been criticized. The criticism has, itself been rebutted and/or the criticism doesn't negate no. 1 or nos. 3-10.

3) No deterrence study finds that the death penalty deters none. They cannot. Anti death penalty columnists Eric Zorn of the Chicago Tribune states, "No one argues that the death penaly deters none." Yes, some do, But Zorn is correct, the issue is not "Does the death penalty deter?". It does. The only issue is to what degree.

4) About 99% of those murderers who are subject to the death penalty do everything they can to receive a lesser sentence, in pre trial, plea bargains, trial, in appeals and in clemency/commutation proceedings. Life is preferred over death. Death is feared more than life. No surprise. Would a more rational group, those who choose not to murder, also share in that overwhelming fear of death and be deterred by the prospects of execution? Of course.

5) There are a number of known cases of individual deterrence, those potential murderers who have stated that they were prevented from committing murder because of their fear of the death penalty. Individual deterrence exists.

6) General deterrence exists because individual deterrence cannot exist without it.

7) Even the dean of anti death penalty academics, Hugo Adam Bedau, agrees that the death penalty deters .. . but he doesn't believe it deters more than a life sentence. Nos. 4-6 and 10 provide anecdotal and rational evidence that the death penalty is a greater deterrent than a life sentence. In addition, the 27 studies finding for deterrence, find that the death penalty is an enhanced deterrent over a life sentence.

8) All criminal sanctions deter. If you doubt that, what do you think would happen if we ended all criminal sanctions? No rational person has any doubt. Some would have us, irrationally, believe that the most severe sanction, execution, is the only sanction which doesn't deter.

9) If we execute and there is no deterrence, we have justly punished a murderer and have prevented that murderer from ever harming/murdering, again. If we execute and there is deterrence, we have those benefits, plus we have spared more innocent lives. If we don't execute and there is deterrence, we have spared murderers at the cost of more innocent deaths.

10) Overwhelmingly, people prefer life over death and fear death more than life.

"If we execute murderers and there is in fact no deterrent effect, we have killed a bunch of murderers. If we fail to execute murderers, and doing so would in fact have deterred other murders, we have allowed the killing of a bunch of innocent victims. I would much rather risk the former. This, to me, is not a tough call."

John McAdams - Marquette University/Department of Political Science

dudleysharp said...

The primary goal of the death penalty, as with all sanctions, is justice - that is and appropriate and proprotional sanction for the crime committed.

Safety, deterrence, etc. are intended and accepted benefits of sanction, but cannot be the reasons for it.

It would be immoral to give a sanction based upon anything but it being deserved.

No theory of deterrence is based upon instant carrying out of the sentence and abandoning appeals. It is a ridiculous arguement.

In fact the recent studies finding for deterrence are based upon the executions, themselves and also find that simply having death penalty statutes also finds for deterrence.

Yes, there are results finding that quicker executions increase deterrence, but there is deterrence with delayed executions, as well.

Appeals of 5-7 years, prior to executions, as in Virginia, should be the rule.

dudleysharp said...

Responsible death penalty protocols will result in the death penalty costing about the same as LWOP or even less.

Death Penalty: Saving Costs over LWOP?

Can any jurisdiction have a responsible death penalty protocol whereby the costs are similar or less expensive than life without parole cases?

Of course.

Virginia has executed 65% of those sent to death row in 5-7 years after sentencing, because of strict timelines for thorough appeals, a process validated through both state and federal courts.

It is crucial to check the claims and methodology of the death penalty cost studies. Often they are either very deceptive or inaccurate, just as some studies which compare the costs of the death penalty vs life without parole.

Instead of an apples to apples comparison, we often find a kangaroos to apples comparison.

1) "Death Penalty Cost Studies: Saving Costs over LWOP"
http://homicidesurvivors.com/2010/03/21/death-penalty-cost-studies-saving-costs-over-lwop.aspx


2) "Duke (North Carolina) Death Penalty Cost Study: Let's be honest"
http://prodpinnc.blogspot.com/2009/06/duke-north-carolina-death-penalty-cost.html
(NOTE: A 2009 study, by one of these authors, found that by ending the death penalty NC might save $11 million , or about 1 penny ever third day/person. I have not read it, yet, but based upon this professors prior study, reviewed here, the death penalty likely saves money.)


3) Cost Savings: The Death Penalty
http://homicidesurvivors.com/2009/05/07/cost-savings-the-death-penalty.aspx


4) See 4th comment down within comments:

The California Death Penalty Fraud:

Posted by dudleysharp on August 19, 2010 at 4:35 AM | Report this comment

Rebuttal to ACLU:
and A Rebuttal to "Cut This: The Death Penalty"(1)
Death Penalty vs Life Costs in California
http://www.eastbayexpress.com/ebx/are-capital-punishments-financial-costs-worth-it/Content?oid=2003765

More cost reviews upon request.

B. Prokop said...

Dudleysharp,

You write: "The primary goal of the death penalty, as with all sanctions, is justice - that is an appropriate and proprotional sanction for the crime committed."

So I will ask you the same question that I asked Mike on the thread below this one:

Are you suggesting then that all murderers should get the death penalty? Because right now, only a very small fraction of them do.
In 2007 there were 18,632 homicides in the U.S. There were 42 executions in that year in the U.S. Are you seriously suggesting that we should have executed 18,632 people in 2007?

PhilosophyFan said...

I wish to reiterate here, I think the death of innocents (DoI) is a weak case against the death penalty (DP). Failure to administer justice on some guilty, in fact, probably results in more DoI than the DP would in error anyway.

Maybe it's something about it being "state sanctioned." But we allow cops to administer the "DP" on spot in imminent situations. What's the important distinction there?

dudleysharp said...

Prokop:

To be clear, my only point was that the purpose of sanction is justice. with all sanctions.

No one sanction fits all murders, all rapes, all robberies, etc.

The judges or juries shall make those determinations on a case by case basis, as they do.

Likely about 10% of all murders might be eligible for a death sentence, for which prosecutors may feel confident in getting a death penalty in a third or so, or about 500 cases per year, using your murder.yr., for which they might receive the death penalty in one third, at trial, or 166.

I do wish the death penalty were imposed more often, because I think justice is a benefit and the death penalty also saves additonal innocentives, both of which are benefits.

B. Prokop said...

I personally am not 100% against the death penalty. But unlike you, I wish it were used far more sparingly than it is. If it were up to me only the federal government would have capital punishment, not the states. And it would be reserved for people whose continued existence would be deemed a clear and present danger to civilization (e.g., Bin Laden). For instance, I saw no need to execute Timothy McVey since he had been effectively neutralized, whereas Bin Laden would have remained a threat even in captivity.

Crude said...

Bob,

I personally am not 100% against the death penalty. But unlike you, I wish it were used far more sparingly than it is.

Hey look, a place where we can agree.

In my younger days, I was entirely in favor of the use of the death penalty as a deterrent and a solution to crime problems in a broader sense. Pope John Paul II's talk about the culture of death eventually moderated my view heavily. Now, while I still think it is supportable, and I certainly don't think it's immoral in all cases, I am extraordinarily wary of it. One big issue is 'execution as a just penalty' versus 'execution as a way to solve problems'. As tempting as it is, I cannot endorse the latter except in the most extreme circumstances.

There are other reasons for my hesitance, some of them having to do with fundamental issues in government. And I'll offer Victor another interesting way to approach this argument with conservatives. "You think the government lacks the competence and/or the proper authority to direct the economy, to maintain a welfare state, etc. Why then do you trust them with deciding which crimes merit death, and who lives or dies?"

dudleysharp said...

Crude writes:

"You think the government lacks the competence and/or the proper authority to direct the economy, to maintain a welfare state, etc. Why then do you trust them with deciding which crimes merit death, and who lives or dies?"

No one does.

Most US states and the federal government spend a huge amount of time and money protecting the lives of murderers on death row.

It us utterly mismanaged.

Fix it.

Virginia executes in 5-7 years, 65% of those sent to death have been executed and only 15% of their cases are overtuned on apeals (from afew years back).

That's how all states should do it.

It's another grossly mismanagaed Govt system that needs to be fixed.

Not suprising, with all that care and time, there is no evidence of an innocent executed since the 1930's.

It looks like about 25 actually innocent people have been sent to death row since 1973, or about 0.3% of the 8100 sent to death row during that time and they were all released on appeal

I doubt that there is a greater result with government agencies protecting the innocent, than with the US death penalty.

And, making it more efficient, as per Virginia, will retain that saftey record, based upon Virgina.

Victor Reppert said...

The claim you need to defend the death penalty is the claim that the death penalty, as opposed or other potential deterrents. Do the crime stats support that?

dudleysharp said...

Victor:

It is possible you may misunder stand how deterrnce is measured.

Please read the studies, as well as the rest of the links.

Read 3 then 2 then 1.

Of course the death penalty deters.

All prospects of a negative outcome deter some. It is a truism. The death penalty, the most severe of criminal sanctions, is the least likely of all criminal sanctions to violate that truism.

1) 27 recent studies finding for deterrence, Criminal Justice Legal Foundation
http://www.cjlf.org/deathpenalty/DPDeterrence.htm

2) "Deterrence & the Death Penalty: A Reply to Radelet and Lacock"
http://homicidesurvivors.com/2009/07/02/deterrence-and-the-death-penalty-a-reply-to-radelet-and-lacock.aspx

3) "Death Penalty, Deterrence & Murder Rates: Let's be clear"
http://prodpinnc.blogspot.com/2009/03/death-penalty-deterrence-murder-rates.html

4) This is out of date, but corrects a number of the misconceptions about deterrence.
"Death Penalty and Deterrence"
http://homicidesurvivors.com/2006/03/20/the-death-penalty-as-a-deterrent--confirmed--seven-recent-studies-updated-61204.aspx

5) "The Death Penalty: More Protection for Innocents"
http://homicidesurvivors.com/2009/07/05/the-death-penalty-more-protection-for-innocents.aspx

dudleysharp said...

oops, already posted that yesterday

Victor Reppert said...

Dudley: I think you need to call Rick Perry's office. He won't like finding out that Texas losing to Virginia on death penalty efficiency.