Should torture killers be tortured? Or are we coddling murderers?

Does a person who tortures someone to death deserve to be tortured to death? If not, then the killer gets something he denied his victim, a painless death?

The Death Penalty and Retribution

I have brought up some objections to the deterrence argument for the death penalty, and also the expense argument for the death penalty. These, I contended, were undermined by the slowness of the appeals process. A speedier appeals process, however, makes it more likely that innocent people will be executed. So, the death penalty advocate faces a dilemma. A long appeals process makes it less likely that an innocent person will be executed (although the possibility still remains), but it also undermines deterrence and increases expense. A shorter process will increase the risk of executing an innocent person who might otherwise be exonerated, which is already a problem for capital punishment. So my argument had a dilemma structure that I am not sure people picked up on.

However, some have argued that the case for execution isn't primarily a matter of deterrence or even expense, it is a matter of retributive justice. I do accept C. S. Lewis's claim that it is extremely perilous to remove the question of desert from sentencing.

It should be the first consideration, though surely not the only consideration. I am quite sure that Lewis would have also endorsed this comment, which his friend J. R. R. Tolkien put into the mouth of Gandalf:

“Deserves it! I daresay he does. Many that live deserve death. And some that die deserve life. Can you give it to them? Then do not be too eager to deal out death in judgement. For even the very wise cannot see all ends.” 

The retributive theory of punishment requires that we deprive the criminal of happiness to a degree commensurate to the wrongness of their acts. In order to fit the crime, the punishment does not need to resemble the crime. We wouldn't use that principle in the case of rape and torture, so why use it for murder? In order for the argument to go through that the death penalty uniquely meets the requirement of giving a criminal his just deserts, you need an argument other than the argument from resemblance, and I don't know what that would be. Executions are quick and physically painless, which was probably not true of the death of the victim of murder. The person executed knows for a long time that this is coming, which again would not be true of the victim. So, once we are deprived of the argument that a punishment that resembles the crime best fits the crime, how do we show that the death penalty is the best way of exacting retribution? 

Cameron Todd Willingham

Dudley Sharp wrote:

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

Really? What about Cameron Todd Willingham?

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.

What the death penalty WILL deter

It would probably deter jaywalking better than murder. Murderers have a motive to risk at least life in prison to kill someone, so risking the death penalty is a smaller step further. On the other hand, no one is going to risk being executed to avoid walking a few feet to the crosswalk. 

Deterrence and pickpocket hangings

Ilion likes to argue that the case for the death penalty has nothing to do with things like deterrence, or closure for victim's families. It is about retribution, and only retribution.

That's probably good for the death penalty, because the case for the death penalty as a deterrent to capital crime strikes me as weak. Pickpockets used to be hanged in England, and the most likely place to get your pocket picked was at a pickpocket hanging.

A Question about Victim's Families and the Death Penalty

Sometimes we are told that execution, like no other penalty, provides closure to crime victims' families. Many victims' families feel that way when the death penalty is being sought. But, after the executions take place, do they actually feel the satisfaction that they were hoping to feel before the criminal was executed?

Is there any research on this?

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

Ilion's defense of the death penalty

Ilion says that I haven't really addressed his argument for capital punishment. It looks like it goes like this.

1. Any civilized society stands in need of protection.
2. The protection of society requires the preparedness to use deadly force. An example would be if, actually happened in 1966, someone went up into the bell tower at the University of Texas and started shooting people. He had to be shot down out of the tower to protect the student and staff of the university.
3. Therefore, a systematic rejection of deadly force in the protection of society undermines the very idea of protecting society.

I think this is a good answer to a simon-pure pacifism. However, someone could argue as follows.

1. The use of deadly force should be used only as a last resort.
2. In the case of captured criminals, deadly force is never a last resort. It is always possible to lock these people up and throw away the key.
3. Therefore, the need to protect society may require the preparedness to kill in some cases, but does not require the preparedness to execute.

It could further be argued that if we have the capacity to imprison for life, this is preferable, because of the possibility that always exists that exculpatory evidence may subsequently emerge.

Do capital defendants have the right to be DNA tested?

In a 5-4 ruling on June 18, the U.S. Supreme Court reversed a lower federal court ruling holding that the due process clause of the Fourteenth Amendment guarantees a convicted inmate the right to a DNA test on evidence that might prove his innocence. The defendant, William Osborne, had been convicted in 1994 of sexual assault in Alaska and sentenced to 26 years in prison. Alaska is one of only 4 states in the country that does not have a law providing for access to DNA evidence (the other 3 are Alabama, Massachusetts, and Oklahoma, though Alabama recently passed a law allowing limited access to DNA for death row inmates). Osborne was willing to pay for the test, which the state admitted might have conclusively proven his guilt or innocence.
While acknowledging the revolutionary importance of DNA testing in the criminal justice system, Chief Justice John Roberts, writing for the majority, said that it would be better to allow states to develop their own procedures for utilizing this forensic tool. He wrote: "Federal courts should not presume that state criminal procedures will be inadequate to deal with technological change. The criminal justice system has historically accommodated new types of evidence, and is a time-tested means of carrying out society’s interest in convicting the guilty while respecting individual rights. That system, like any human endeavor, cannot be perfect. DNA evidence shows that it has not been. But there is no basis for Osborne’s approach of assuming that because DNA has shown that these procedures are not flawless, DNA evidence must be treated as categorically outside the process, rather than within it."