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.

Execution Without Appeals--A Death Penalty That Gives Us What We Say We Want From It

Two favorable effects of the death penalty that make it seem desirable are that it is less expensive to execute than to imprison, and that it capital punishments deters capital crime better than life imprisonment. Both of these are compromised by the long appeals process, which is more expensive than housing a criminal for life, and also dilutes the deterrent effect, since a murderer probably won't be executed until long after they were initially convicted. Some people say that there is a class of "open and shut cases" which need not be appealed. Thus, we can get a swift execution without the lengthy appeals process.

To get what this suggestion is looking for you have to implement a special threshold of evidence where there really is no possible doubt, and no chance for a future exoneration. While we can, in a retail sort of way, mention cases where this level of evidence was achieved, the problem is that our system has to identify certain characteristics of cases that are so open and shut that we can't imagine an exoneration. The criteria for a conviction is evidence beyond a reasonable doubt, but even there we have had exonerations. In the case of Casey Anthony, one theory was that the jury was reluctant to convict because they would then have had to consider a death sentence, and since certain kinds of evidence were lacking, they didn't want to take that risk. And "beyond reasonable doubt" is a threshold of evidence doesn't mean that "beyond possible doubt." I don't think the development of an "open and shut case" category where the appeals process could be circumented is workable, although I understand why it would be appealing to many people.

There was the famous arson case in Texas---guy's name was Willingham, where the fire science of the time proved beyond a reasonable doubt that he had killed his family by arson. Only, the fire science of today contradicts that, but, unfortunately, he was executed and wasn't around to be released.

The question is whether it is the extent we are going to allow the risk of executing an innocent person.  I think that that is a horrible side effect of our system. While the system is run by human beings, I think it will remain fallible. If there is a death penalty, then you can't eliminate the possibility of it being used on an innocent person.

To really have a death penalty that does for us what most death penalty advocates would get from it, what you have to do is accept a higher risk than we already have of executing innocent people. (You can't make an omelette without breaking some eggs).  What would really help with the deterrent effect would be getting rid of innocent until proven guilty. That's what they do in some countries. In the People's Republic of China, they would execute the prime suspect within a few weeks, and they did get a real deterrent effect there. 

Does Fitting the Crime require Resembling the Crime

Maybe fitting doesn't require resembling. I'm inclined to think that it gives people an emotion. sense of fittingness if there is a similarity between the offense and the crime, but retributive theory just says you're supposed to deprive the offender of happiness in a measure that is calibrated to the wrongness of the act. There is nothing in that that requires that the form of the punishment resemble the offense.

When a murderer is executed, the death of the murderer differs in many ways from the death of the victim. The state makes sure the death is relatively free of physical pain, something murderers don't care about. The person executed has an execution date set on the calendar for years prior, the victim doesn't. So the murderer's experience differs in many ways from that of the victim.

Everyone is under a death sentence, anyway.

Does the Death Penalty Deter Capital Crime?

Apparently not. The statistics don't support this idea. Quite the reverse.

Simon Tolkien on the death penalty

Simon Tolkien is J. R. R.'s grandson. He might have used a quote from his grandfather, which I have always thought relevant to the question of the death penalty:

"Many who live deserve death, and many who die deserve life, can you give it to them? Then be not to quick to deal out death in the name of justice, fearing for you own safety, not even the wise see all ends." -J.R.R Tolkien

Abortion, the death penalty, and the charge of hypocrisy

It is not a contradiction to support both the right to choose abortion but not the death penalty. If you believe you shouldn't kill persons without adequate moral justification, then you may support abortion because you think that fetuses aren't really persons. That is, you may think that a fetus really hasn't started its life, and therefore has no life to lose. But you may oppose the death penalty, because capital criminals have fully developed brains and know they are losing their lives. Many Democrats accept these two positions.




It can go the other way, too. Someone can believe in the death penalty because they think capital criminals deserve it. But they may also think that the fetus is a real person whose right to life has to be respected. Many Republicans are in this boat.



You may disagree with these pairs of positions, but the people who advocate them are not contradicting themselves. The death penalty issue and the abortion issue are two different questions that have to be assessed on their own merits.

Tolkien on the death penalty?

"Many who live deserve death, and many who die deserve life, can you give it to them? Then be not to quick to deal out death in the name of justice, fearing for you own safety, not even the wise see all ends." -J.R.R Tolkien

Is Capital Punishment Cheaper?

Not now, apparently, if you add in all the expenses required for appeals.

A Christian defense of capital punishment

By Kerby Anderson.

Two obvious problems. First, Anderson thinks that because the Old Testament law teaches that the penalty for murder ought to be death, that this is part of God's moral law (as opposed to the ceremonial law) and should be carried forward into modern society. However, there are lots of other stoning offenses in the Bible (adultery, homosexual activity, and my favorite, disrespecting your parents). I don't see Anderson saying that the penalty for these offenses should be carried forward into modern society.

Second, Jesus stopped an execution. Should we accept Jesus' criterion for who should participate in an execution? If so, we can have the death penalty on the books but are going to be hard pressed to find anyone to perform the executions, since the last sinless person who walked the earth ascended into heaven nearly two milennia ago.

Evidence, Deterrence, and the Death Penalty

What type of evidence is relevant to the question of whether the death penalty deters? It seems to me that one kind of evidence, statistical comparison of relevantly similar jurisdictions which have, and do not have, the death penalty, is relevant and acceptable. But defenders of the death penalty suggest another type of evidence, the fact that convicted capital criminals, when given a choice in the matter, choose life imprisonment over death, is given as a reason supporting the deterrence claim.

This just strikes me as a bad argument. It seems to me that what a prisoner decides in his jail cell has little to do with what he might choose when he is thinking of committing a murder and thinks he probably will get away with it.

In any event, even if it is evidence, it is not very good evidence compared to statistics.

Exonerations and the death penalty

Though I had a commentator on this site say that the number is a fraud.

Why does Manson get parole hearings?

I'm not a fan of the death penalty, but this is one of the better arguments for it. I wish we knew how to swallow the key with people like Manson.

An argument against capital punishment.

I'm not a supporter of the death penalty. I think my #1 reason is that if someone is executed, and evidence later arises that the person was innocent, there is no prisoner still alive to release.
So what can they do, put flowers on the grave?

Why execute?Because it's cheaper? It's not. It takes more money to litigate an execution than to feed a prisoner for a lifetime. Because it deters? It doesn't work as a deterrent. Statistical evidence is not on the side of the argument from deterrence. Because the killer deserves it? Is execution better than death for the criminal? And if the criminal tortured the victim, should the criminal be tortured in turn? What if he's a rapist?

For and against capital punishment