Friday, December 17, 2004

Irrevocability and the Death Penalty

I’m not a proponent of the death penalty, at least under current conditions. I worry that our current state governments cannot be trusted to apply the death penalty fairly and evenhandedly. But I also find many anti-death penalty arguments unpersuasive. In particular, I’m surprised by the number of death penalty opponents who present empirical arguments as though they constituted a categorical or “principled” case against the death penalty.

For instance, many death penalty opponents emphasize its irrevocability: Once someone is dead, you can’t bring them back. Now, this is clearly true – but it’s also true of other penalties, though to a lesser extent. Suppose I’m sentenced to 50 years in prison. I serve 40 of them, and then new evidence comes to light that sets me free. Nonetheless, I can never get back those 40 years. They are forever lost to me. Or what if that evidence never comes to light? Then I lose 50 years that can never be returned. Or what if I die in prison, before the evidence appears? Again, I’ve lost years of my life that can never be refunded. (This case would be problematic even if the state attempted to monetarily compensate freed innocents for the lost years of their lives.) Finally, some people sentenced to years in prison will receive the rape penalty, which may involve the transmission of HIV – another kind of death sentence, also irrevocable.

Given that most penalties – certainly those recommended as alternatives to the death penalty – are to some extent irrevocable, the irrevocability argument against the death penalty boils down to a claim that the death penalty is somehow more severely irrevocable than other penalties. That, however, is an empirical claim whose validity depends on the magnitude of the death penalty’s deterrent effect.

Why? Because even if your only goal were to minimize lost years of life to innocent people, the death penalty could actually reduce the number of such years if the deterrent effect were large enough. Think of it this way: The death penalty, if effective, reduces the number of murders. Fewer murders means fewer murder trials. Fewer murder trials means fewer convictions. And fewer convictions means fewer convictions of innocent persons (assuming the institution of the death penalty is not accompanied by a weakening of the standards of evidence).

In short, an effective death penalty could reduce the number of innocents punished by the criminal justice system. Thus, there is a trade-off. On the one hand, the number of innocents convicted falls; on the other hand, some of the innocents still convicted receive a harsher punishment.

Consider some numbers. Suppose there are 1000 murders per year without the death penalty (with convicted persons receiving life sentences instead). Suppose imposing the death penalty, in some or all cases, will reduce the murder rate by 30%, to 700 per year. Suppose that 50% of cases result in a conviction, and suppose the wrongful conviction rate is 10%. Then without the death penalty, there will be 1000*50%*10% = 50 innocent persons convicted. With the death penalty, there will be 700*50%*10% = 35 innocent persons convicted. So instituting the death penalty saves 15 innocent people from conviction. On the other hand, hopefully some of the 50 innocents convicted without the death penalty will eventually be vindicated and set free. Suppose, very generously, that this happens 20% of the time, and (again generously) they are fully compensated for their lost years. This reduces the number of innocents irrevocably punished to 40 – still greater than the 35 under the death penalty. And note that we haven’t even considered the 300 prevented murders!

Now, the figures above are totally hypothetical, and I don’t claim they’re anywhere near correct. A smaller deterrent effect or a greater reversal rate could alter the outcome. (Changing the overall conviction rate or wrongful conviction rate would not alter the outcome, however, since those numbers apply both with and without the death penalty.) My point is that which penalty regime imposes the smallest burden, in terms of irrevocable convictions of innocent people, depends crucially on the empirical facts. An opponent of the death penalty who relies on the irrevocability argument should, therefore, be willing to reverse her position if presented with the right data. Yet the irrevocability argument is typically presented as though it were a knock-down point against the death penalty.


Anonymous said...

Glen, I'm irrevocably, flatfootedly envious. That was a super post and reveals a clever, crystal-clear mind. I would never have been able to counter that irrevocablity-of-the-death-penalty argument in a real debate situation in a sensible manner. That's why I want to see you debating online. Only one nitpick, there is a hidden anti-reincarnation bias to your thesis. How do you know you weren't a frog in your previous life and that you won't soar like an eagle in your next one! The problem with reincarnation as I see it is the seemingly randomness of the process: a frog becomes a prince, Hitler comes back as Bush etc. Personally, I'd rather come back as Albert Einstein or you and not as Peewee Herman.I forgive you for leaving out this highly complicating feature. Sadly, I think science is a long way from controlling the reincarnation process but that doesn't mean that we shouldn't try. I propose that we use a portion of the money from the embryonic stem cell budget to fund more reincarnation research. We as a thoughtful, "humane society" must get our priorities straight.

-Plantar Wart

Anonymous said...

Another problem is that death penalty opponents discount their own role. I'm not an expert on the subject, but it seems like much more time and resources are devoted to exonerating (or less charitably, freeing on technicalities) people on death row than to freeing lifers. To the extent that these efforts have some effect then abolishing the death penalty would have the practical effect of reducing the reversal rate.


Anonymous said...

It's great if fewer number of innocent people are convicted. But does the death penalty truly have deterrent effects? I don't know any stats on whether it reduces the number of violent crimes.
What if the argument was for not wanting to decide the fate of anyone's life altogether? Does sentencing a murderer to death really give resolve to the victim's grieving family? They still don't get their loved one back, just revenge.
If I was a jury member for Scott Peterson, I would feel very uncomfortable deciding his fate. Even though he is convicted, I wasn't there and I'll never really know. And even if i did, i'd still feel uncomfortable deciding someone else's fate. (Yes, this has not happend to me so I can't really say how i would feel yada yada.)
Whatever the case, even though Scott recieved the death penalty, apparently he's in prison for about 20 years or more (i understand that the long process helps free innocent victims). I think this can be worse than death right away b/c some people reform over those long years or learn to get use to prison life, and there is nothing as sad and disgusting as a man pleading for his life.
Or what about when the prisoner is raped and beaten consistently? The 20 long years of torture can be worse than death. I wondered about what would happen to Scott Peterson. I know that child rapists and very violent criminals are usually raped and beaten to death by the inmates (murdering a full-term pregnant woman is up there in many people's minds). I wondered if he'd survive once he's in contact with other prisoners.
Whatever the case, this is a sad ending.


Gil said...


How do you reconcile this argument with your conclusion to not support the death penalty?

You seem to be willing to trust the government to apply all sorts of severe penalties that fall short of the death penalty, so you must see the death penalty as very different in some way.

If it's not that it's "more severely" irrevokable, than what is the reason? Why does the death penalty require more trust than the government has earned, while other penalties don't?

Jimmy said...

1) The death penalty is different from imprisonment because it is not necessary. We must use imprisonment as a punishment to punish criminals and deter crime. If we abolish imprisonment there will be no incentive to not commit crimes and those who do commit crimes would not suffer any punishments. Under such circumstances society would collapse and all freedoms would be in jeapardy.
There are people who are wrongfully convicted but we cannot eliminate prison sentences without society falling into anarchy and an imperfect society cannot give perfect justice. Thus the wrongfully imprisoned have suffered a tragedy but they have not suffered gratuitously. In a viable society some men are bound to suffer injustice from the state.

Whereas the abolition of the death penalty would have virtually no effect on the viability of our society. Thus those who who are condemned to death unjustly also die gratuitously. They die because society insists on a policy which does nothing to add to it's security or viability.

2. It is unreasonable to demand a perfect government - a government that never commits injustice against its citizens. However one can demand to have an accountable government - a government that takes responsibility for the injustices it commits.

Those imprisoned wrongly can have the opportunity to demand accountability from the government. They cannot be fully reimbursed for their injustice but they can expect some accountabiliuty. In imposing the death penalty the government is able to avoid all acountability since the person it is accountable to has been eliminated.

Anonymous said...

"I worry that our current state governments cannot be trusted to apply the death penalty fairly and evenhandedly."

Yes, Glen will have to try to reconcile the above statement to Gil's satisfaction. It won't be hard to do.
Adding my two cents: Justice is blind. In (parts?) of this country there appears to be an "affirmative action" program to seek the death penatly for poor minority alledged killers and to lie and cheat to get a conviction. For the most part, the juries seem to have the same fondness as the prosecutor to more harshly judge and punish blacks. Also, why wasn't the death penalty on the table for OJ? Because we as a society couldn't bear to see a football star fry? I won't even go into detail as to why he got off. Did OJ's millions have anything to do with it? He got the best defense that money will buy. Santa, is justice blind in America? HO, HO, HO!!!

-Battling for the Blind

Anonymous said...

Yes, Gil, we could do away with the insanity defense as well. No longer could a murderer claim to be insane at the time of the crime to avoid a harsher punishment. That defense prolongs a trial by bring psychiatric testimony into the picture. At least some malevolent killers who are good at acting crazy would no longer be able to escape the death penalty. Of course, most true homicidal nuts would be condemned to die as well but who cares? My mental health would be better served if we killed all the dangerous nuts, like Manson and Hinkley. But the theory is that someone like Hinkley may get over his "sickness" and go on to be a productive member of society. Do you trust psychiatry that much to want to see Hinkley on the street again even if you happen to abhor Shrubya? I think I know how Jodie Foster would feel about it. One problem that I can see is whether a mentally ill person can mount an adequate defense. How many innocent mentally ill will be wrongly convicted? Does it matter? Resolve: The insanity defense should be abolished.

-First Debate

Glen Whitman said...

Gil has a good point, which I'll endeavor to address later. But right now, I want to skip past it to Jimmy's comment, which nicely demonstrates the kind of argument from death penalty opponents that I find so unpersuasive.

Says Jimmy: "Whereas the abolition of the death penalty would have virtually no effect on the viability of our society. Thus those who who are condemned to death unjustly also die gratuitously. They die because society insists on a policy which does nothing to add to it's security or viability."

This is stated as though it were obviously true, but it actually depends crucially on the *data*. Is it really true that the death penalty does nothing to add to society's security or viability? NOTHING? The death penalty has ZERO deterrent effect? Sorry, I don't buy it. If people didn't fear the death penalty more than a life sentence, they wouldn't fight so hard to have their death sentences commuted to life. I'm confident the death penalty must have *some* deterrent effect; the question is whether the effect is large enough to outweigh the disadvantages.

Then Jimmy says: "Those imprisoned wrongly can have the opportunity to demand accountability from the government. They cannot be fully reimbursed for their injustice but they can expect some accountabiliuty. In imposing the death penalty the government is able to avoid all acountability since the person it is accountable to has been eliminated."

This is exactly the point I refuted in my post. When someone dies in prison while serving a sentence, the government avoids accountability. When someone dies of AIDS after being raped in prison, the government avoids accountability. Even a person is freed and some compensation is paid (which, by the way, I understand almost never happens), Jimmy admits they cannot be *fully* compensated -- and the government avoids accountability to that extent. All these factors indicate that prison is not so different from the death penalty as death-penalty opponents would have us believe. We're talking about a difference of degree, not of kind. And once we're talking about differences of degree, the actual data start to matter a whole lot more.