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September 2, 2011
Am I right that conclusive deterrence evidence would "solve" death penalty debate?
I mentioned in class my belief that if we had truly conclusive and indisputable empirical evidence that using the death penalty to sentence/execute guilty murderers indisputably saves innocent lives, then there would be very little political and social debate concerning using the modern death penalty to sentence/execute guilty murderers. Does anyone want to take issue with this claim? Specifically, does anyone wish to argue that, even in the face of truly conclusive and indisputable that abolishing the modern death penalty would cost some innocent lives, that we still should get rid of the death penalty?
Critically, as revealed by reports at this pro-death penalty website and responses at this anti-death penalty website, there plainly is not clear empirical evidence that using the death penalty to sentence/execute guilty murderers saves innocent lives. Thus, one might reasonably accept my contention and still categorically oppose the death penalty given the current (and perhaps inevitable) absence of conclusive empirical evidence. Still, I want to have a discussion — here on the blog and/or in class — concerning my basic assertion that conclusive empirical evidence here could end what is often cast as a purely moral debate.
UPDATE: Inspired in part by the many thoughtful and effective responses to my initial inquiry, I am going to sharpen the hypothetical and see if the responses stay the same.
Let's suppose that we now have truly conclusive and indisputable evidence that the summary execution of Osama Bin Laden served to very significantly reduce the number and scope of terrorist attacks in the Middle East and around the world (including attacks being planned for the US), whereas the capture and continued confinement of Khalid Sheikh Mohammed has served to very significantly increase the number and scope of terrorist attacks in the Middle East and around the world (including attacks being planned for the US).
If we did have truly conclusive and indisputable evidence that OBL's quick execution saved many innocent lives in the US and around the world while KSM's capture and likely life imprisonment has cost many innocent lives in the US and around the world, do you think persons with moral opposition to the death penalty would still want all major terrorist suspects handled like KSM rather than like OBL? (Ignore, for purposes of this hypo, that KSM was waterboarded, though maybe that makes it easier to accept my supposition that how the US has dealt with KSM has cost more lives than how the US dealt with OBL.)
Steve D. gets to the heart of my inquiries here when he states that "only someone who bases their morality on pure utilitarianism would be swayed by such evidence," but he then claims that "most people are not utilitarians." I have the contrasting belief that everyone is a utilitarian if and when — and perhaps only if and when — the stakes get high enough and the empirical evidence is conclusive. And I think this is a critical issue to explore at the outset of any death penalty discussions becausemany people on all sides of the DP debate are often (1) quick to assert that nothing is more valuable/important than innocent lives, and (2) eager to claim that they have strong (but not conclusive) empirical evidence to support their DP position(s).
September 2, 2011 in Deterrence, Pro/Con arguments surrounding the death penalty, Sentencing data | Permalink
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I think the final sentence is based on a faulty assumption; empiricism will never trump a normative conclusion. The moral aspect of the debate as to the rightness of the government taking a human life is completely detached from whether or not such action saves innocent lives. If I think the death penalty is morally wrong, because I do not think anyone other than God should determine life or death why would evidence that the death penalty saves lives change my position?
More directly addressing the question, I would be willing to say that if it is indisputable that the death penalty saves lives it should not be abolished. The conclusive evidence, however, is loaded with assumptions that I need to be shown also hold true in order to maintain this position. 1.) Is the conclusion that the death penalty saves lives based on an efficient allocation of resources (put another way, do we cost innocent lives in other ways because in order to save lives via the death penalty we have to divert resources from things like police staffing or investigation?); 2) Is is also a conclusive, indisputable fact that the death penalty will not execute an innocent life? If the answer is no, even if it is assured the total number of innocent lives saved will be greater than if the innocent person had not be executed, I might not be so ready to accept the death penalty. Executing innocent people has serious long-run effects on the institutional reputation of the criminal justice system. I would be less willing to accept the empirical evidence and more likely to rely on my normative position if the second assumption could not be shown to be true.
Posted by: Kevin S | Sep 5, 2011 10:12:27 AM
Even under the circumstances posed here, a healthy debate would still take place about the moral validity of the death penalty. That's because a sizable group of people will likely always feel that the government should not purposely take a human life.
Say 20 years from now, scientists discover a gene that shows that a person has a homicidal tendency. If this gene is discovered in utero, empirical evidence shows that the baby should be aborted to save lives. Despite the evidence, I believe there would still be a large outcry that the government should not be able to control families in this manner.
Also, if the U.S. banned cigarettes, that would undoubtably save lives, but the government would still hear protests that they are exerting too much control over the population. These hypotheticals make me think that the arguments that the death penalty should be abolished would still continue in force even in the face of this empirical evidence.
Posted by: Maureen F | Sep 5, 2011 1:37:52 PM
More people would definitely support the death penalty if it could be proven beyond a shadow of a doubt that using the death penalty to sentence/execute guilty murderers deters murderers from murdering. I would like to know how much of a deterrent the death penalty would be percentage-wise and whether it continues to deter over time. In addition, if no other crime increased as a result of using the death penalty, it would almost be a mute point in the political spectrum because it would save lives, save money, and free up resources.
However, as a social debate, I would have to agree with Maureen F about the morality issue. Although indisputable evidence is presented, there will always be those people who advocate for human life, even if those are lives of criminals. It's a paradox, because the same people who advocate for the lives of the murderers are forgetting about the innocent lives that were lost. I suppose that they rationalize their theory on the basis that killing one more life will not bring back the lives of those already lost.
Nevertheless, I believe that the ability to (considerably) lessen the amount of murders by this form of deterrence would overshadow the morality debate.
Posted by: Crystal M | Sep 5, 2011 7:54:53 PM
I definitely believe that the moral convictions of many people would, in spite of statistics, cause them to oppose the death penalty. In a sense, it represents an acceptance of the notion that some people are inherently evil and cannot be "saved" or "fixed" without being killed.
However, if faced with the facts that the death penalty did conclusively and significantly reduce the number of murders and save innocent lives, a major argument against the death penalty -- its inefficacy -- would be eradicated. So, ultimately, the rational weighing of pros and cons might tip in favor of the death penalty.
Posted by: Heather W | Sep 5, 2011 9:05:17 PM
If the only conclusive and and indisputable empirical evidence is that the use of DP on guilty murderers saves innocent live, I think there would still be a healthy debate on whether or not we are actually executing guilty murderers. When a life is at stake, I think even the low probability ~5% of false convictions would lead many to keep opposing the DP. If the assumption includes that only guilty murderers are executed, I agree with the people above that there would still be a healthy debate on the use of the DP. Life without the possibility of parole will continue to be favored by those who have a moral aversion to the state power to take its citizen's life. Monetary cost of imposing the DP is another issue that I think would remain regardless of the DP's efficacy.
Posted by: Marco | Sep 5, 2011 9:47:09 PM
I think you have it backwards: "conclusive and indisputable evidence" that the sentenced murderer was, in fact, guilty would end the debate about the death penalty, because even those concerned about government power are generally concerned about the use of that power in the face of human fallibility. Those of us who are generally skeptical about government involvement in most things (if not everything) are not going to be swayed by the deterrent effect - only a definitive statement, based on ironclad evidence, that death sentences are passed on indisputably guilty convicts would end the debate.
Finally, only someone who bases their morality on pure utilitarianism would be swayed by such evidence, and most people are not utilitarians.
Posted by: Steven Druckenmiller | Sep 5, 2011 10:00:13 PM
Another anti-death penalty argument that would remain is cost. As Justice Marshall pointed out in Furman, it costs more to execute a man than to keep him in prison for life. This argument would be even stronger in a recession. But the strength of this argument depends on the amount of the difference in cost. For example, if it would cost an additional $1 million to pursue the death penalty rather than life imprisonment, then this argument would be more convincing. This money could be spent on other life-saving policy measures, such as improved healthcare for low-income children. So death penalty abolitionists would argue that pursuing the death penalty would still actually risk innocent lives.
Posted by: Rees Alexander | Sep 6, 2011 8:24:31 AM
If there were empirical evidence that the death penalty were to save lives it could be possible for the death penalty argument to shift and the penalty might be adopted by some of the pro-life moralists. The argument I could see shifting to something like this: which do you value more; the lives of the innocent or murderers? The argument could be made that (under the auspices of conclusive, beyond a doubt empirical evidence that the death penalty SAVES lives by preventing murder) if you value innocent life you MUST adopt.
As a person who thinks the death penalty should not be used (for several reasons) it would be difficult to hold that position if I were confronted with evidence that the death penalty's deterrence effect saved innocent lives.
Posted by: Olivia B. | Sep 6, 2011 9:41:53 AM
I agree that the moral debate over the government taking a life will continue even in the face of conclusive and indisputable empirical evidence that the death penalty would save lives. I think that conclusive and indisputable evidence that the person being executed was guilty would make those that oppose the death penalty for fear of executing an innocent person then support it, however I do not think that the debate would end under these circumstances. There will still be those who oppose the death penalty on other moral grounds, such as believing that God should be the only one to take a life, or that there is an illegitimate social disparity among those that are committing crimes that warrant the death penalty. I think that as long as there are still moral arguments to be made aside from the fear of killing innocent people, neither conclusive evidence that the death penalty would save lives nor evidence that the accused was actually guilty would end the debate.
Posted by: Ranya Elzein | Sep 6, 2011 9:46:45 AM
I agree with the above comments that the debate would continue regardless of conclusive and indisputable empirical evidence that the death penalty saves lives. As mentioned above, there will still be those who do not feel it is the government’s role to take a life, even if a person is "guilty." The assumption that the death penalty would save lives is not enough to end the debate. Some of those denouncing the use of the death penalty would continue to view executions as a form of vengeance that should have no role in our justice system. Others would argue that life sentences could serve the same role of saving lives. Most states have a sentence of life without parole in which prisoners will never be released. Thus, the safety of society could be protected without resorting to the death penalty. Further, it appears there are some people who oppose the death penalty simply because they believe that executions let murderers “off too easy.” In short, while empirical evidence that the death penalty saves lives may cause a shift in views regarding capital punishment, the debate would surely not end.
Posted by: Todd Seaman | Sep 6, 2011 11:02:09 AM
As a response to what Rees said, I'm wondering if the hypothetical being discussed already takes into consideration the increased financial cost of the death penalty and still assumes that more innocent lives will be saved by not abolishing it. In any case, the financial cost of using the death penalty is something to think about, so I agree with Rees' point.
Also, I don't believe that saving some innocent lives is going to convince many of those currently opposed to the death penalty to support it, as many of those opposed to the death penalty do not prioritize forward-looking concerns. For example, opponents of the death penalty may value rehabilitation of criminals, not for utilitarian or foward-looking reasons, but instead for its own sake--and obviously executing criminals is not consistent with rehabilitating them.
Posted by: Harrison Markel | Sep 6, 2011 11:15:14 AM
" I have the contrasting belief that everyone is a utilitarian if and when — and perhaps only if and when — the stakes get high enough and the empirical evidence is conclusive."
I am reminded of one quote and one joke that seem relevant:
"Those who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety." - Benjamin Franklin (note: it may not be the case that permitting the State to put people to death constitutes the sacrifice of of 'essential Liberty', but that is up for debate)
and:
At a dinner party one night, a drunk Churchill asked an attractive woman whether she would sleep with him for a million pounds.
“Maybe,” the woman said coyly.
“Would you sleep with me for one pound?” Churchill then asked.
“Of course not, what kind of woman do you think I am?” the woman responded indignantly.
“Madam, we’ve already established what kind of woman you are,” said Churchill, “now we’re just negotiating the price.”
It may be true that we are all whores at a certain price level, but, shouldn't our criminal justice system be more aspirational?
Posted by: Steven Druckenmiller | Sep 6, 2011 11:56:56 AM
Sorry for clogging up the comments, but at this point, it seems useful to state that there is a difference between Act Utilitarianism and Rule Utilitarianism. A Rule Utilitarian could, even in the face of this evidence, still maintain that the having a Rule against the Death Penalty brings the greatest good to the greatest number.
For example, limiting government in this fashion may be a limit much like Wikipedia outlines ("[T]he Fifth Amendment to the United States Constitution states, 'No person shall be compelled in any criminal case to be a witness against himself.' Even though that rule protects many criminals from conviction, in its absence people could be tortured or threatened into confessing crimes they didn't commit. So, if there were no fifth amendment, it would not cause the greatest good for the greatest number of people.")
To fashion an analogous hypothesis, the risk of application of the Death Penalty to an innocent may cause such societal distress and unhappiness that the number of lives saved still does not outweigh the unhappiness caused by human fallibility in this matter.
Posted by: Steven Druckenmiller | Sep 6, 2011 12:45:15 PM
"I have the contrasting belief that everyone is a utilitarian if and when — and perhaps only if and when — the stakes get high enough and the empirical evidence is conclusive"
I fundamentally disagree (maybe its the result of multiple years being educated by jesuits). Morality, if it is to mean anything, has to impose a higher order and structure than that which can be proven by facts. I do agree that there is probably a larger segment of society that has a moral intuition that can be swayed by conclusive facts. I'm just not sure how large this segment is and whether it would dominate a discussion on the death penalty. This is a broader critique on political discourse, but it is the fundamentally moralistic in this society, those that cannot be swayed by empirical evidence, that are engaged and drive debate. Facts cannot overcome those things believed to be truths.
Posted by: Kevin S | Sep 6, 2011 12:48:15 PM
In response to the updated question, it's really interesting to consider what anti-death penalty people would say in that situation. In circumstances like those given, I would guess that death penalty opposers would still be in opposition of the punishment. What it comes down to, in my opinion, is that idea of intentionally taking a life, versus taking the RISK of taking other peoples' lives in the process of capturing someone as evil (for lack of a better word) as KSM or OBL. As many previous comments have mentioned, one of the largest, and most glaringly obvious, issues with the death penalty is the government taking someone's life in the name of justice. Even with clear data that indicated the success rate of the death penalty, I'm not sure opposers would suddenly flip camps and endorse, or at least accept, the death penalty. If there is still the option to merely capture a serious criminal, rather than kill him or her, I honestly think that death penalty opposers would support that tactic, rather than a hunt and kill mission. It's just hard to imagine that people so stringently against the intentional taking a human life, even in the name of "justice," would suddenly be willing to accept that method, persuasive evidence or not.
Posted by: Allison S. | Sep 6, 2011 12:56:58 PM
This hypothetical raises some interesting points. The question was posed: “shouldn’t our criminal justice system be more aspirational?”. It seems the answer to this depends on one’s view of the purpose of the criminal justice system. If one believes that the purpose of the criminal justice system is to ensure public safety and protect innocent lives, then it seems that the death penalty under these assumptions is justified. Given the assumptions, merely capturing the terrorist would not be enough to protect innocent lives.
The question becomes: what is more important, protecting one life by not imposing the death penalty, or protecting many innocent lives by executing the terrorist? I agree with Professor Berman’s assertion that “everyone is a utilitarian if and when — and perhaps only if and when — the stakes get high enough and the empirical evidence is conclusive." If we did have truly conclusive and indisputable evidence that OBL's quick execution saved many innocent lives in the US and around the world while KSM's capture and likely life imprisonment has cost many innocent lives in the US and around the world, I believe that people would want terrorists handled like OBL. In this situation, I think that even those stringently opposed to the death penalty might agree that protecting many innocent lives outweighs the justifications for opposing the death penalty.
Posted by: Todd Seaman | Sep 6, 2011 1:13:18 PM
I find it interesting that people think these "moralists" will claim that the death penalty would still be wrong in the face of this indisputible evidence of saving lives because it is not the governments place to take a life. Either way you look at this, the government is choosing to take one life and save another. The difference being with the death penalty you take the life of a murderer, while without the death penalty you take the life of an innocent person. Sure, it isn't the hand of the government which takes the innocent person's life, but the innocent person's death would be 100% attributable to the government's decision to not have the death penalty.
I am not claiming that there would not be people who would continue to oppose the death penalty, I am simply saying that their logic is flawed. Lives will be lost either way, it is just a choice of whose life we want to take and whose life we want to save.
As far as the utilitarian hypothesis goes, I tend to agree with Professor Berman. I don't think that people will necessarily go against thier morals, but I do think that at some point when the stakes are high enough (or the stakes are personal enough) people's moral compasses will point the other direction and the morally right thing to do would coincide with utilitarian thinking.
Posted by: Sean B. | Sep 6, 2011 1:15:43 PM
"The difference being with the death penalty you take the life of a murderer, while without the death penalty you take the life of an innocent person. Sure, it isn't the hand of the government which takes the innocent person's life, but the innocent person's death would be 100% attributable to the government's decision to not have the death penalty...Lives will be lost either way, it is just a choice of whose life we want to take and whose life we want to save."
You are eliding the distinction between an active "taking" and a passive "letting". In other words, do you consider yourself guilty of homicide (note: not murder) because you did not donate food to Africa today? The starving African's death is "100% attributable" to your NOT taking action (i.e. donating food).
I hope you realize that there should be a difference between "taking" and "letting".
Posted by: Steven Druckenmiller | Sep 6, 2011 10:19:25 PM
I'm not saying that the government is guilty of homicide, or murder, or anything else by not choosing the death penalty when it is shown to save lives, just like I'm not saying that the government is guilty of homicide, or murder, or anything else by choosing the death penalty and executing guilty criminals. What I'm saying is that a choice has to be made and either way lives are going to be lost. The question I am posing is why "moralists" would choose to save guilty lives over innocent lives?
Further, maybe I am little bit responsible for a starving African's death, or how about we make it hit a little closer to home and say that I am, just as you are, a little bit responsible for a starving American's death. The fact is, this analogy is off-base. It is the governments duty, not yours or mine, to protect the lives of innocent Americans, and in this hypothetical, they can do that simply by instituting the death penalty.
Posted by: Sean B. | Sep 7, 2011 9:34:40 AM
In light of the updated hypothetical facts, I believe the public would be far more in favor of execution than life imprisonment. However, such an opinion is narrow in scope and can not be paralleled to the broader death penalty debate. First, the use of Osama Bin Laden, an infamous international terrorist leader, for this example greatly prejudices the expected responses. Our current post-9/11 criminal justice attitude is very different from pre-9/11 attitudes, and a random convicted death row inmate simply can not be compared to Bin Laden in the minds of most Americans. Thus, I think that people who are hesitant to impose the death penalty for a convicted murderer despite truly conclusive and indisputable empirical evidence that using it would save innocent lives, would nonetheless feel much more comfortable supporting a quick execution for Bin Laden.
Secondly, the guilt of Bin Laden was never in question. One of the main “what ifs” of the death penalty is the question of whether we are executing an innocent person. This is not a consideration when discussing the guilt of Bin Laden -- and thus it is much easier to sentence him to death.
Posted by: Biru C. | Sep 7, 2011 10:14:33 AM
"It is the governments duty, not yours or mine, to protect the lives of innocent Americans, and in this hypothetical, they can do that simply by instituting the death penalty."
Like the Rule Utilitarianism example from Wikipedia I posted above, the Government cannot do certain things even if the results of the Government being prohibited from doing those things is high. That is what "rights" mean; the Government, for example, must give you a jury trial. Has that led to jury nullification and "wrongful acquittals"? Yes. But that is not an argument for eliminating the jury trial. Only a pure Act Utilitarian would think that "the death penalty has been conclusively shown to save lives" is an argument - it supports a moral proposition (which, I think that objective reality means that the moral and the practical are one and the same, but that is an aside not worth exploring at the moment), but it does not make a moral proposition.
And I beg to differ with the notion that " "moralists" will claim that the death penalty would still be wrong in the face of this indisputible evidence of saving lives because it is not the governments place to take a life. Either way you look at this, the government is choosing to take one life and save another." That was the original notion where I think there is a difference between a "taking" and a "letting". I find it perfectly acceptable to let someone die (and I must, else I would sell all of my possessions and give all of the money to poor starving Africans) if you are not responsible for the circumstances of their situation. I "let" a starving American die today - because I did not donate all my money to charity. *shrug*. That is not guilt I am willing to accept. Ditto with the government: the government is not all-powerful and people are not monads. We have free will, but this raw utilitarianism reduces people to deterministic billiard balls that carom off of one another.
Finally, if we say that "death penalty = less innocent lives" lost, and therefore the death penalty is justified, how many lives on the right hand side of the equation justifies the left? One? More than one?
Posted by: Steven Druckenmiller | Sep 7, 2011 2:44:46 PM
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