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When Criminals Deserve To Die, Part IV – Deterrence and Innocence

November 14, 2009

JW, master of persuasion as he is, and potentially a future contributor to this blog, writes:

As you know, we disagree on this subject. While I would be prepared to argue that the capital punishment should never be applied, I think there are practical and philosophical reasons that would lead one to reject your position.

From a practical standpoint, I think there is evidence that the ultimate penalty’s deterrent effect is limited. Spectacular horrors like the ones you mention are not committed by men who are afraid of the consequences. The deterrent effect (if it exists) would only be among those lesser crimes for which you concede death is not appropriate punishment. From a pragmatic standpoint, there is little to recommend the death penalty that does not hold also true for life without parole.

I am certain that public hangings provided a grim lesson to potential criminals in years past, but our society has progressed beyond this practice. Even with a higher standard of evidence, it is conceivable that an innocent can be executed. There are well worn arguments about the cost of execution trials. It will not deter the heinous crimes where you would apply it.

On philosophical grounds, it would be in every individual’s interest to remove the power of life and death from their government’s hands. You equate their crimes with attacks on the amorphous mass, demanding the ultimate sanction in return. The crime may be applied ’socially’, but justice can only be applied on an individual basis. Each citizen regards the threat of mistaken conviction as utterly remote, yet when faced with prosecution every person would demand full quarter to defend themselves.

A civilized society no longer needs a parade of corpses to justify the power of the state to force cohesion and obedience. I am sure the sight of a wretched old man in shackles will have a similar effect as a the serene body of an executed lunatic, without having to resort to state sanctioned murder.

JW in the comments

Basically, JW attacks limited application of the death penalty on grounds that it is a weak deterrent and still risks taking innocent life.  I disagree.

First, deterrence is ancillary to my main points. I’m arguing from a retributivist’s perspective, which is moral in nature.  Each murder the policy prevents is a benefit, but in no way does it form the core justification for the death penalty in my view.  Second, I think these arguments gloss over my point that it may deter people from pushing their crime from murder to mass murder. This applies more to serial killers and shootings than, say, a bomber who takes out victims in one fell swoop.

A person who has to make his decision over and over again, however, would certainly at least consider the risk that what he is doing will push him into death penalty territory (whereas now the first murder gets you death, so why not kill a few more?).  Cho killed two people in his initial wave, waited two hours, then killed 25 in the second building.  I don’t think it’s unreasonable to think that a potential copycat less demented in that situation would have used that time to consider the gravity of launching another killing spree.  If the prospect of the death penalty contributes in a non-trivial way to stopping a further wave, this is a benefit to my proposal.

Third, I don’t think the death penalty does deter people exactly like Hasan. But it might generally deter someone who is a bit less troubled, a bit less committed. We can’t eliminate the risk, we act to contain it. Responding to his crime with the death penalty may short circuit some future plot orchestrated by a man less dedicated than the people who actually ended up going through with it.

As for the “innocent life” argument as presented by JW, it doesn’t apply to the examples I’ve provided. I actually can’t think of very many real cases other than the ones I’ve mentioned in Parts I, II, and III that would deserve the death penalty in the past two decades under my four-point metric. Interestingly, each of these cases have in common either an open confession or undeniable affirmative proof beyond any doubt who the perpetrator was.

McVeigh took credit. Hasan had to be shot and potentially permanently paralyzed to end his rampage. Muhammad was caught with the murder weapon, a sniper hole cut into his trunk, and a map marking his past shootings. Rudolph confessed to the Olympic bombings. Cho had tons of hollow-point ammunition on his person when found after he committed suicide. What practical doubt could you have at all? In a metaphysical sense I suppose you could make a philosophically interesting point about shared perceptions or something, but in any real sense it is a fact who the killers were.

My enhanced standard of proof was set up precisely to avoid the situation Jesse describes.  A damaging counter-argument must produce some evidence establishing any real doubt about the cases I’ve given.  Another option would be to provide an actual case which meets the four standards I’ve outlined (mass murder, deliberation, extraordinary heinousness, and the incitement of panic and paranoia altering our way of life) and yet has some non-reasonable but actual doubt as to the perpetrator’s guilt.  Then, we could argue whether a case like this would have ever gotten past the jury under my standard.  Otherwise, a point about the risk of taking innocent life remains only philosophically (as in, not worth considering) and not pragmatically damaging.  The much more interesting question is whether it is still unjustified for the state to take the life of someone who is definitively guilty.  I would welcome a debate on this point.

Lastly, the “parade of corpses” language is emotive, but a bit dishonest.  We are talking about applying the death penalty 5 times over the past 10 years in response to over 200 deaths.  The only corpses on parade were choreographed by terrorists like McVeigh or self-styled heroes like Cho. Taking the lives of a handful of mass murderers hardly qualifies.

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