Death Penalty and Deterrence

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I've been teaching capital punishment for the last week in my ethics class. There are two main arguments for the death penalty, and I see them as relatively independent of each other. Retributivism is the view that the death penalty is the only just punishment for premeditated murder because it is the only punishment that's proportional to the crime. A life was taken, and that is so serious that no other punishment matches up with what the murderer deserves. This sort of argument rarely occurs in public policy arguments, in my experience, even though it's the argument with much stronger philosophical support historically. I think that's probably because our culture has moved away from liking the idea that we deserve anything bad when we do wrong. Most people do accept a kind of retributivist justice when they get robbed of something they think they've earned. They just don't want to extend retributivist arguments against wrongdoing.

So death penalty advocates have often relied on deterrence claims in recent decades. The only problem is that studies aiming to establish whether capital punishment deters any potential murderers from killing have been fully inconclusive. The ones with the strongest conclusions have tended to be the ones with the least credibility. The weaker the conclusion, the fewer problems critics have been able to find. This is so in both directions, and many people familiar with the literature have concluded that we can't know whether capital punishment deters, and that has left philosophers defending the death penalty trying to establish why we should retain capital punishment even if we can't show that it deters. A couple of those arguments are, I think, quite brilliant. One takes a form of Pascalian-style wagering based on the potential rewards if you bet on deterrence and win vs. if you bet on it and lost, compared with what happens if you bet on non-deterrence and ban capital punishment. There are difficulties with these arguments, but I find it fascinating that people would go to such lengths to defend the deterrence value of capital punishment because studies on deterrence are inconclusive, when the historic justification for the death penalty doesn't assume any deterrence at all.

That was the state of play a few years ago. It's pretty much how all the ethics books dealing with the question leave things. It amazed me, therefore, to see that The New York Times highlighted a dozen studies in the last few years that conclude that the death penalty does deter murders, from as many as 3 to 18 murders per execution. This article was published in November. I only heard about it because Joe Carter linked to it. I didn't save a link to it at the time and had to do some careful Google searching just to located it again. I didn't see other reports of it in that searching.

That surprises me, because this is huge if these studies turn out to be well-founded. It changes the whole debate about the second justification for the death penalty, and apparently it's changed the minds of a number of important figures, including Cass Sunstein, a well-left-of-center law professor who had been completely opposed to the death penalty. I haven't seen these studies, and I'm not sure I'm qualified to evaluate them fully even if I did see them, but I do know some people have criticized them, although that tells us very little. Some people will criticize anything that gives a conclusion they don't like. I'm going to be looking out for further developments on this. I don't think those who support the death penalty should abandon retributivism, but if the death penalty does deter that's worth knowing about, because those who aren't retributivists might be basing their whole evaluation of the death penalty on this one question.

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The death penalty was the featured topic the other day on an NPR show (I forget which one) on which a British Lord (whose name escapes me as well) made a pithy remark that encapsulates my view precisely. I’m paraphrasing here:

‘To my knowledge, no one has ever successfully appealed a death sentence…after it’s been carried out.’

It seems to me that, even if one accepts the notion just deserts vis-à-vis capital punishment, it’s hard to get around the documented fact that innocent individuals have been—and likely will be in the future—convicted and subsequently executed; and this impulse is, presumably, more often than not, primarily fueled by emotion, which leads to the seemingly irresistible (and irrational?) desire for vengeance.

A question for proponents of capital punishment: would you quietly submit to the executioner, after having been wrongly convicted of a capital crime, just to preserve the principle of Retributivism? Or, as I suspect, would hypocrisy rear its ugly head and insist upon a double-standard, i.e., the death penalty is good for thee, but not for me?

The argument against the death penalty based on the premise that you ought to have an unlimited amount of time to appeal seems to me to rule out all such time limits for appeals, and that would seriously undermine many judicial systems that don't have a death penalty. It's different with DNA evidence, but that's a new phenomenon.

I think the standards should be extremely high for establishing guilt in capital cases, and I detest the separation of conviction and sentencing that often happens. If you convict without knowing the penalty, then it seems you don't have to have as high standards to convict. But that doesn't mean there aren't clear cases when the guilt of the murderer is clear enough. Problems with procedure are problems with procedure, and if we removed punishments based on them we'd have to stop punishing people altogether. It's better just to raise the standards.

My support for retributivism has nothing to do with emotion. Kant argues for it based on death as the only possible response to what the person has universalized by being willing to kill. The biblical argument is that God's image is so important that we cannot treat those who destroy it willingly as having forfeited the privilege of continuing to live. Neither of these arguments strikes me as being inappropriately emotion-laden (as opposed to being reasoned). Nevertheless, I don't think emotion is problematic in ethics. Aristotle would certainly have a bone to pick with people who think morality is about rational decision-making free from emotion. Healthy emotions are crucial to the ethical life. Something is wrong with you if you're not appropriately outraged at murder.

Read Plato's Crito for some strong arguments for going along with an unjust death sentence. I think they're pretty decent arguments, although I also think there might be some exceptions. I would go along with it myself, except in extraordinary circumstances (e.g. if the world depended on my survival for some reason). I would use what legal means there are until they're exhausted, but I would submit to the authorities who have been placed over me by God.

The deterrence studies you referred to have been around for many years, and have been widely discredited on a number of grounds. Visit www.deathpenalyinfo.org for links to the studies themselves and informed discussions about them.
Easiest to understand is the fact than homicide rates are consistently lower in states and regions without the death penalty than in those with the death penalty.

According to the NYT article, they're talking about a certain set of studies in the last few years that are different from the more inconclusive ones that are older. There's a difference in how death penalty opponents (or at least in how many of them) are seeing the newer studies. That's how the article presents it, anyway.

The biblical argument is that God's image is so important that we cannot treat those who destroy it willingly as having forfeited the privilege of continuing to live.

I completely disagree, for two main reasons:

1. It seems clear to me that one’s immortal spirit—not the mortal body—is created in God’s image, as evidenced by the fact that God is Spirit (although, I’m convinced that Christ rose from the tomb with a glorified, incorruptible body of ‘flesh and bone’ similar to the one that His elect will eventually receive.

2. Christ famously taught that, while the law demanded an eye for an eye, He preferred that one turn the other cheek if and when one is the victim of injustice (i.e., vengeance is mine, says the Lord). Granted, that’s often easier said than done; but in the context of a cool-headed, reasoned, theoretical discussion such as this, to ignore Jesus and revert to Moses seems rather odd, no?

Read Plato's Crito for some strong arguments for going along with an unjust death sentence.

I just re-read Apology, in which Socrates submitted to the verdict after pointing out its absurdity, most likely because of the afterlife that he imagined.

So do you think we have male and female souls? Genesis 1 suggests that being male and female is part of our being in God's image. I also think Paul is clear that we are naked without a body and were designed to be physical beings. The fall did not make us physical.

At any rate, Genesis 9:6 makes it clear that the reason for the death penalty is because we're made in God's image.

Your second point is about individual relations between a believer and some other individual. Paul says much the same thing about such relationships at the end of Romans 12 but then goes on to endorse the state's use of the sword to enforce justice, so obviously whatever he meant in ch.12 (which is pretty close to what Jesus said) is not about the state's use of violence. This isn't reverting to Moses. It's continuing what the New Testament continues to affirm that the covenant with Moses also continued from the command to Noah.

The Crito arguments have nothing to do with the afterlife. They have to do with gratitude for being protected by the laws and hypocrisy if you take advantage of the laws only when they benefit you while breaking them whenever you feel like it. Christians, of course, do factor in the afterlife, and that makes the argument even stronger, as does the Christian conviction that God has placed authorities over us and that we should submit to them even when it means our death.

Someone left this entire essay as a comment. I'm not going to allow people to use my comment threads to post essays they'd like distributed, so I'm not approving the comment, but I wanted to say that it would have been fine simply to link it here, and I've done so. Some of the arguments are among the more important (but often ignored) points that those in favor of the death penalty give when challenging studies aiming to show no deterrence.

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