Balkinization  

Sunday, November 18, 2007

Does the Death Penalty Deter? Who Cares?

JB

There seems little doubt-- to me at least-- that the death penalty, if applied consistently and predictably enough (so that there is a real chance that it would be applied to a potential criminal defendant) will deter all sorts of crimes. It will deter murder. It will deter embezzlement. It will deter jaywalking. The fact that various economic studies (as noted in this NYT article) suggest this correlation should hardly startle anyone. People don't like to die, even if the death is painless, and informing people that there is a credible chance that they will die at the hands of the state if they perform a certain activity, all other things being equal, is likely to reduce the level of that activity.

To be sure, the death penalty is not consistently and predictably applied in this country. For one thing, opponents of the death penalty have reduced the number of times it has been used, and they have slowed down the process of executions. Moreover, it is possible to avoid the death penalty through plea bargains, which prosecutors may accept to ensure conviction and to avoid the expense of a capital trial. In addition, the prosecutorial and jury system may offer a much more credible threat of the death penalty to persons who kill whites than those who kill blacks, or at least, this is what the Baldus study seems to have shown.

However, put those objections to one side. Even if we grant that the death penalty deters, surely the appropriate question is whether the application of the penalty is worth the gains that accrue from it. If it is cruel and unjust, we would not apply it even if it saved lives. For example, I assume that however one feels about the use of torture in ticking time bomb scenarios, most people would not support torturing convicted murderers for several weeks immediately before they were executed. But if the death penalty without torture deters, surely the death penalty with torture might deter even more murders. Similarly, I assume that most people would not support either torture or the death penalty for financial crimes, even if they cost the country billions of dollars, or for knowingly selling ineffective (or watered-down) drugs to patients, even though it caused terrible amounts of suffering and led to many unnecessary deaths. The reason, I assume, is that people would regard such punishments in those circumstances as independently evil. Similarly, I take it that no amount of economic studies today would convince most Americans to reinstitute slavery, even if it were shown that it actually improves the lot of the vast majority of Americans, perhaps even the lot of those enslaved themselves. They would not reinstitute slavery even if multiple economic studies showed that a system of chattel slavery would save many lives.

The question of whether to abolish the death penalty,-- or, as seems to be the case in this country-- to confine it to so small a class of crimes with procedures so expensive and drawn out that it has very little practical deterrent effect-- is a question about the moral meaning of the death penalty as much as it is an argument about its deterrence. (This is a point that my colleague Dan Kahan has made in a series of articles over the past decade.).

Given the infrequency (and cost) of the death penalty in America, which I do not see changing anytime in the near future, arguments about deterrence are a sort of sideshow that allow people to avoid talking about these larger questions with the hope that they can solve the issue by the application of generous amounts of social scientific studies. The more important question is what the death penalty means morally to its supporters and to its opponents.

Although most of my friends are abolitionists, I am not. I don't in fact think that the death penalty should be abolished for all crimes. (Nor do I think that it is cruel and unusual punishment in all cases, which is a separate question). I would reserve the death penalty for a very small number of crimes of such moral atrocity that death at the hands of the state is a suitable moral response. Those crimes rarely occur in the United States, and some of them tend not to be prosecuted by state officials. But the primary reason I would permit the state to carry out a sentence of death is not because the death penalty deters or does not deter. Crimes that deserve the death penalty-- like genocide-- may or may not be performed by persons who could be deterred. For all we know, such persons might think they are on a mission from God. The question of whether they deserve death-- and whether it is morally just for the state to administer death-- is separate from the question of whether the threat of death would deter them.

Comments:

I fully agree that whatever the value in deterrence, such is wholly secondary to whether we ought to retain the death penalty.

The "justness" of executing an individual for the particular crime(s) in question is the primary reason for or against the death penalty. And as such, I support the death penalty for first degree murder.

First degree murderers deserve no sympathy; as for forgiveness that's up to God (if He or She exists), not the state.
 

First degree murderers deserve no sympathy; as for forgiveness that's up to God (if He or She exists), not the state.

Then it would seem that a fair number of states have been playing God recently on the basis of DNA evidence.
 

The reason why these studies are relevant to the debate is that the purely moral/philosophical debate surrounding the death penalty is stagnant and neither side has been able to muster a knock-down argument for its position (and such an argument is not presently foreseeable).

Moreover, whether the death penalty deters is surely important to the question of its morality. If it has no detereent effect, this cuts against utilizing it in all but the most exceptional cases. If it does have a deterrent effect, we need to think about how we administer the death penalty. We also need to think about how this empirical evidence (if in fact true) interacts with the lessons of the Baldus study (a study surely important to determining how the death penalty, as actually administered, is capable of being meted out in a moral fashion).
 

I agree and disagree with Prof. Balkin. I agree that the deterrent effect is ultimately irrelevant -- but for a different reason. I think that if you could demonstrate a deterrent effect for "the" death penalty, you could demonstrate a greater one for "death penalty plus" -- say, preceded by torture, or carried out in some horrible way. We've seen just how little stands between us and some clever OLC lawyer or Supreme Court clerk discovering that such things aren't 'cruel and unusual,' say, if the crime were particularly heinous. (That Sacramento v. somebody or other ruling would doubtless be invoked, "eye for an eye" would be intoned, and we'd be off to the races -- burning arson-murderers at the stake, etc.)

I should perhaps add that I am a death penalty abolitionist; justice -- "even" American justice -- is not 100% accurate. But the death penalty is 100% irreversible.
 

I now see Prof. Balkin makes the "death penalty plus torture" point as well; sorry for the duplication.

Re these studies, I'll be interested whether the question of innocents put to death is factored in to any of these studies -- and if so, how. Very few citizens will have an accurate view of "just" capital punishment rates. (Among them, ironically, will be the murderers who let some one else die for their sins.) For most, the capital punishment rate won't be discounted for possible innocence rates, so the more executions, (possibly) the more deterrence -- regardless of the particular accuracy of those executions.

So I still think Prof. Balkin's arguments are undermined by his openness to the death penalty in rare cases. If he sees a value to it, even in rare cases, others will argue we're just arguing over the price tag. So restating, I agree that we should take care not to defend the death penalty merely on grounds that it deters -- since I think that kind of deterrence is enhanced by executing the innocent as well as the guilty.
 

I find it odd that this is getting so much press. Studies have suggested that a sentence in excess of 20-25 years has a greater deterrent effect than those reported in Liptak's article. The cold hard reality is that for every capital trial a state pays that same cost can fund a cop for a few years and for every death verdict & subsequent appeal fund a cop for a lifetime.
 

The death penalty may not deter murder as effectively as it would deter embezzlement or jaywalking, because murderers are less likely to behave rationally than are embezzlers or jaywalkers. Some murderers want to die; you'll recall that Ted Bundy said that he had moved to Florida to commit murder again because it had the death penalty. Thus, the number of murders that the death penalty deters must be discounted by the number of murders it encourages.
 

There seems little doubt-- to me at least-- that the death penalty, if applied consistently and predictably enough (so that there is a real chance that it would be applied to a potential criminal defendant) will deter all sorts of crimes. It will deter murder. It will deter embezzlement. It will deter jaywalking. The fact that various economic studies (as noted in this NYT article) suggest this correlation should hardly startle anyone. People don't like to die, even if the death is painless, and informing people that there is a credible chance that they will die at the hands of the state if they perform a certain activity, all other things being equal, is likely to reduce the level of that activity.
Hmmmmm. So, let's make suicide bombing a capital offense, and see how much that deters.
 

There seems little doubt-- to me at least-- that the death penalty, if applied consistently and predictably enough (so that there is a real chance that it would be applied to a potential criminal defendant) will deter all sorts of crimes. It will deter murder. It will deter embezzlement. It will deter jaywalking. The fact that various economic studies (as noted in this NYT article) suggest this correlation should hardly startle anyone. People don't like to die, even if the death is painless, and informing people that there is a credible chance that they will die at the hands of the state if they perform a certain activity, all other things being equal, is likely to reduce the level of that activity.
Hmmmm. So, let's make suicide bombing a capital offense, and see if it really deters.
 

I don't know; It seems to me there's something just a bit "off" about getting rid of the death penalty because of it's expense, when that expense is created by opponents of the death penalty.

This is not to say that we should keep the death penalty on the merits, just that that particular argument grates on my nerves for that reason.
 

Jack writes, "[t]he question of whether to abolish the death penalty . . . is a question about the moral meaning of the death penalty as much as it is an argument about its deterrence."

This line reminded me of an observation in an essay, now about 5 years ago, by Avery Cardinal Dulles, who was writing on the death penalty from a Catholic point of view:

“Retribution by the State," he said, "can only be a symbolic anticipation of God’s perfect justice. For the symbolism to be authentic, the society must believe in the existence of a transcendent order of justice, which the State has an obligation to protect. This has been true in the past, but in our day the State is generally viewed simply as an instrument of the will of the governed. In this modern perspective, the death penalty expresses not the divine judgment on objective evil but rather the collective anger of the group. The retributive goal of punishment is misconstrued as a self-assertive act of vengeance.”

I wonder – putting aside the particularly Catholic flavor of Dulles’s discussion – what people think of the suggestion that there are limits (i.e., limits tied to fact that, in modern democracies, the state is viewed “simply as an instrument of the will of the government”) on the ability of capital punishment *to* mean what it once meant, or needs to mean in order to be justifiable?
 

Dear all,
I am quite a bit surprised, not to say shocked, of the cavalier way the question of the deterrent effect of the death penalty is treated here. The studies cited in the Times article completely disregard the experience of abolitionist countries in the world, which have seen no increase in capital crimes since abolising the penalty. Jack' piece, however, seems not only to make the - debatable - point that deterrence is not the decisive argument. But you seem to believe that it is beyond the need of evidence.
Neither do the other contributions think that the fallibility of evidence in the trials themselves is relevant.
Finally, nobody discusses the question of whether an execution is acceptable under the "cruel and unusual"-standard when no medical professional is present, but that medical professionals cannot be present without violating their millenia-old ethical code.

There are more reasons to have a serious debate about the death penalty. For that, however, with respect, more is required than a few casual remarks.
Andreas Paulus
 

You don't need a medical professional present to hang someone, just a good hangman. If done right the neck snaps immediately and painlessly.
 

If it has no detereent effect, this cuts against utilizing it in all but the most exceptional cases.

The inverse of JB's argument can be applied to this argument. There is an independent ground for the death penalty that is moral, and as such independent from the consequentialist considerations of deterrence. (this is the punishment as retribution theory)
 

Andreas writes, "There are more reasons to have a serious debate about the death penalty."

Another one is the inevitability of executing innocent people, which death penalty supporters necessarily regard as mere collateral damage. I submit that the death penalty, because it is irreversible (in a way that even time served in prison is not), violates due process unless the defendant is proved guilty beyond all doubt, and such proof is not humanly possible. Every criminal punishment, in other words, must allow for the possibility of error.
 

I don't know; It seems to me there's something just a bit "off" about getting rid of the death penalty because of it's expense, when that expense is created by opponents of the death penalty.

I think this is only partly true. Yeah, opponents have demanded protections against executing the innocent. But any moral argument in favor of the death penalty must provide such protections if it's to preserve its claim to morality. The expense is inherent once someone adopts that position.
 

Another one is the inevitability of executing innocent people, which death penalty supporters necessarily regard as mere collateral damage. I submit that the death penalty, because it is irreversible (in a way that even time served in prison is not), violates due process unless the defendant is proved guilty beyond all doubt, and such proof is not humanly possible.

This is a serious argument against the DP. Though I would note that in the modern era it has not been "inevitable" that innocent people are executed. In fact I don't think there is proof of one factually innocent person in recent times who has been executed. And that's because if it takes 30 years of i dotting and t crossing to execute someone, what's inevitable is that the factually innocent fish will be found.

This disturbs me because in order to properly have the DP, it really ought not take 30 years, but no more than 5 or so to execute someone.

I'd be all in favor of a special "no doubt" standard for the DP. And then execute EVERY single first degree no doubt murderer. Then we'll see how well it works as a deterrent.
 

In my own little corner of the world (Greensboro, NC) I've certainly seen a softening of the will for the death penalty in the last 5 years or so. In many cases in the past, the demand for the DP was driven in large part by mistrust of the justice system to adequately punish killers and protect the public from them. I'm reminded of the serial killer in Buffalo if I recall, who brutally murdered 7 or 8 prostitutes (maybe more, it's been awhile since I saw it on American Justice or whatever program). What struck me particularly was the guy had actually been imprisoned for murder previously and got out in something around 10 yrs. Had he been properly imprisoned the first time, 8 murders would never have happened.

Nowadays, most jurisdiction with the DP make it so it is either death or life without parole, no exceptions, and make it very specific that there is NO parole. That has made it much easier to get a life sentence in a capital case, and any capital defender will tell you the first thing they tell the jury in sentencing is life means life.

In any event, an attorney acquaintance of mine recently tried a capital case a county over, one of those No Doubt cases mentioned above. The murderer was assaulting his girlfriend, who called 911 and he picked up the phone and proceeded to stab her to death while talking to the 911 operators. Pretty chilling tape, you hear her screaming and pleading in the background. But he got a jury verdict of life in prison, pretty damn impressive if you ask me. But I think the fact that the state has made sure that he will never get out (which wasn't always the case) made it possible for him to avoid the executioner's needle.
 

In fact I don't think there is proof of one factually innocent person in recent times who has been executed.

Just where do you expect such proof to come from? Courts don't re-try those who are already dead, the dead don't pay defense attorneys, and those doing pro bono work apply their limited resources to rescuing the living.

In the meantime, there are numerous examples of both deathrow exonerations and questionable executions.
 

Jonathan: I see two problems with what you write. First, you "don't think there is proof of one factually innocent person in recent times who has been executed." Would you expect to find such proof after he had been executed? (And why "proof," as opposed to, say, "strong evidence"?) If proof had come to light, then he wouldn't have been executed, and, if he was executed, the chances of an anti-death penalty group expending its resources on him rather than a living defendant seems unlikely. In any case, with the 120-plus innocent people freed from death row since 1976, it is hard to believe that not one was missed. After all, after the time to appeal has passed, convicts have no constitutional right to an attorney. Has every death-row inmate had an exhaustive post-appeal investigation of his case?

Second, you favor a special "no doubt" standard for the DP. But, as I said, that is not humanly possible. Even if the defendant is supposedly caught in the act, we cannot know that someone else has not been switched for him. This is unlikely of course, but "no doubt" should mean literally no doubt.
 

Scott writes, "What struck me particularly was the guy had actually been imprisoned for murder previously and got out in something around 10 yrs."

That is certainly not the norm, even when life without parole is not mandatory. It is unfortunate that jurors seems to require life without parole as an alternative to the death penalty. Wouldn't, say, 50 years without parole be sufficient for all the purposes that prison sentences serve? The possibility of parole can improve prison behavior, and the state could save money by not imprisoning people in their 70s, 80s, and 90s.
 

And why "proof," as opposed to, say, "strong evidence"?

And why reverse the burden of proof so that questionable execution practices are only objectionable if innocence can be proven instead of following the lawful presumption of innocent until proven guilty?

You should also note that of the ten questionable executions that I linked earlier, in exactly none of them did the "30 years of i dotting and t crossing" transpire between conviction and execution that jonathan claims precludes executing the innocent. On average, they took 12.5 years, with the shortest being 6 years and the longest 19.
 

"And why reverse the burden of proof so that questionable execution practices are only objectionable if innocence can be proven instead of following the lawful presumption of innocent until proven guilty?"

I am anti-death penalty and favor anything that will prevent its use. But I must acknowledge that the lawful presumption of innocence presumably was followed in convicting every death row inmate. In seeking to reopen his case, the burden should switch. The question is whether, to avoid death, the inmate should have to prove innocence or merely present strong evidence of it. This is a separate question from what burden he should have to meet in order to have his conviction overturned and be released from prison.
 

In seeking to reopen his case, the burden should switch. The question is whether, to avoid death, the inmate should have to prove innocence or merely present strong evidence of it.

Setting the threshold at the presentation of a reasonable doubt indicates that the burden has not switched. Even after conviction, proof of innocence is not the threshold for retrial.
 

I'm amazed that only Andreas Paulus has referred to the consensus among Western nations (excluding the U.S.) in favor of abolishing the death penalty. Using international data, the general availability of firearms in the United States is much more significant in contributing to the murder rate than the presence or absence of capital punishment.

The U.S. is unique in the "first world" both in its self-destructive fascination with firearms ownership and in its continuing tolerance for using the death penalty as a means of social control to try to prevent minority individuals from killing whites. Baldus' studies (and perhaps others) have shown that in the jurisdictions studied the death penalty is rarely imposed for killing members of a minority group, only for killing whites.

An ABA study in 2003 showed that the overwhelming majority of death sentences up to the time of the study had been imposed in Southern and Border states, plus Arizona. 735 of 856 executions (85.6%) from 1976 though 2002 were performed in just 11 states: Alabama (27), Arkansas (24), Florida (56), Georgia (33), Louisiana (27), Missouri (60), North Carolina (23), Oklahoma (64), South Carolina (28), Texas (305), and Virginia (88). From 1976 through 2002, no other state except Arizona (22) had executed as many as 15 persons. The three other states with more than 10 executions in that period were all states that have regions that are very similar to the South & Border states: Delaware (13), Illinois (12), and Indiana (11). These are the data that every study published up to now have had to work with.

And the proportion of minority persons on death row in almost all these states has been substantially higher than the proportions of minorities in the general population of those states.

Very Important, also, is that none of the econometric studies have included measures of toxic metals in the environment of the executing jurisdiction, although ground-breaking research in the relation between heavy metal pollution and criminal conduct has been on-going for the last decade.

Lead poisoning has been recognized for decades as a major impairment of intellectual development for inner city populations. But Roger D. Masters and Richard Nevin have done major statistical studies in recent years that show strong relationships between sub-clinical environmental lead levels and crime rates.

See Masters, Roger D., Environmental Pollution and Crime, 22 Vermont L. Rev. 359 (1998); Nevin, Rick (May 2000). "How Lead Exposure Relates to Temporal Changes in IQ, Violent Crime, and Unwed Pregnancy". Environmental Research 83 (1): 1-22.

The abstract of Nevin's most recent publication (see Medline Nevin R. Understanding international crime trends: the legacy of preschool lead exposure. [PMID: 17451672]) states that "This study shows a very strong association between preschool blood lead and subsequent crime rate trends over several decades in the USA, Britain, Canada, France, Australia, Finland, Italy, West Germany, and New Zealand…. Regression analysis of average 1985-1994 murder rates across USA cities suggests that murder could be especially associated with more severe cases of childhood lead poisoning."

In one of the most recent studies reported in the Times article, Uses and Abuses of Empirical Evidence in the Death Penalty Debate, by John J. Donohue and Justin Wolfers (Stanford Law Review, December 2005), the authors emphasize that errors in science eventually get corrected, but when those scientific errors lead to a fixed policy (like death penalty standards), it may be hard to correct the policy.

Remembering the Supreme Court's reliance on very flawed use of science in committing an egregious error about "imbeciles" in Buck v. Bell, 274 U.S. 200 (1927) (sexual sterilization of inmates of state institutions found to be afflicted with hereditary forms of insanity or imbecility), all of us should hesitate to accept as "scientific fact" analyses that are as yet inconclusive (1) because of problems identifying all relevant control variables, (2) because the data used in all published studies to date is overwhelmingly concentrated in Southern and border states, and (3) because the studies to date have been based on a number of cases that does not empirically support strong conclusions about what happens in the real world.

I agree with Jack B that the moral question is separate from the empirical question. On the moral question, I have been an abolitionist for 50 years. I would add two considerations to the issue of morality.

First, all killing brutalizes and de-humanizes the killer. Part of the function of firing "squads" for execution has been to allow some members of the squad to refrain from firing a fatal shot. Police departments now recognize that even when an officer has no choice but to kill an assailant in the line of duty, being the killer takes a toll on any moral human being. Being required to kill is one major reason for the high levels of post-traumatic stress disorder in soldiers returning from Iraq & Afghanistan. Having killed, even in necessity, is a major reason that veterans of World War Two, Korea, and Viet Nam never discussed their battlefield experiences with their families. State sanction of the death penalty creates schizophrenia in moral Americans.

Second, a truly moral justice system response would be to encourage the families of murder victims to seek to forgive the killer(s), as did the father of a murdered child in Dead Man Walking. Negative emotions, such as a quest for retribution, simply ruin the health of the survivor. Those prosecutors that frequently seek the death penalty in murder cases may think they are helping the survivors, but they are only adding to the burden of grief. It is not moral to cause the survivors more pain, and those states that do not authorize the death penalty (still 12, I think) do their citizens a great favor by relieving them of any need to press for the "ultimate penalty" because the survivors may think otherwise they may imply that their loved one was worth less in life than a victim whose killer is executed.
 

And the proportion of minority persons on death row in almost all these states has been substantially higher than the proportions of minorities in the general population of those states.

That's not the relevant question. The relevant question is what % of first degree murderers in that state are minorities v. the % sitting on death row. And if you do the controls you'll see minorities are not overrepresented in this regard.

Negative emotions, such as a quest for retribution, simply ruin the health of the survivor. Those prosecutors that frequently seek the death penalty in murder cases may think they are helping the survivors, but they are only adding to the burden of grief. It is not moral to cause the survivors more pain....

I'll let the survivors or family members decide what's best for their mental heath: The overwhelming majority of them want to see the perps executed.

First, all killing brutalizes and de-humanizes the killer.

Honestly if you look at what someone has to do in order to get the death penalty in America...these are human beings least deserving of sympathy. I'm astonished how anyone can shed a tear for them.
 

Second, you favor a special "no doubt" standard for the DP. But, as I said, that is not humanly possible. Even if the defendant is supposedly caught in the act, we cannot know that someone else has not been switched for him.

No I think there are many circumstances where there is no doubt who did the killing. There is no doubt that Ambrose Harris killed Kristen Huggins; there is no doubt that Richard Alan Davis killed Polly Klass. There is no doubt about who did the recent gruesome Conn. murders. I could go on and on. And that they haven't yet been executed (or with the Conn. murders that the perps, if given the DP, will probably sit on death row for over 20 years) is a travesty to humanity.

They are lucky that we have an 8th Amendment because they deserve to be executed in a cruel and unusual way. I'd be satisfied to let them die a quick, relatively painless death via hanging, electric chair, gas chamber, lethal injection or firing squad.

There are enough people who suffer in the world who deserve our sympathies. These folks don't.
 

Andreas Paulus and Ray McClain seem very Eurocentric to me. The future belong to the Pacific Rim countries, and most of them don't have a problem with the death penalty. It's a mistake to equate "the West" with civilization or morality.
 

If you're going to have the death penalty, you ought to amend the process in the following ways:

1) The death penalty would be mandated for all convictions of 1st degree murder...period, no darn exceptions.

2) After the death sentence has been given, lawyers have only 48 hours (seems good to me) to cast all appeals and for the appeals to be ruled upon.

3) Special subdivisions of all higher courts, including the Supremes, would be created to deal with appeals. If you're going to have the vanity and prestige of a judge then you had better be willing to work.

4) The staffs of these new subdivisions would be exacting numbers-crunchers, evidence-spotters, and paper pushers--the kind of legal aides who stick to facts and who are brutally detail oriented, non-political and efficient.

5) The textual length of appeals would be kept at the absolute minimum. I mean, if an attorney can't summarize in a concise paragraph cogently why someone should be put to death for a heinous crime based on cold, hard facts, a miscarriage of justice in the process of trail, or the withholding or omission of evidence, then one's training is off.

6) Then, if appeals are ruled unpersuasive, then convict is placed in a special self-cleaning room. Having people watch the procedure is stupid and more about barbarity than justice or punishment.

7) The quickest way to die involves multiple close range shots directly to the head. This should be done in the self-cleaning room.

8) The body should be burned immediately so no traces of the convict are left at all. No burial for murderers.

Now, if you follow my suggestions, the death penalty WOULD be a deterrent.

Now, let's talk about the procedure for those convicted of rape...
 

John:

2) After the death sentence has been given, lawyers have only 48 hours (seems good to me) to cast all appeals and for the appeals to be ruled upon.

But of course. That's perfect for giving the appearance of "due process" and "reconsideration" w/o actually doing anything resembling such. A bit reminiscent of Dubya's supposed 15 minutes of "review" of clemency petitions.

We definitely need to speed the process up as much as possible; wouldn't do to let someone who we want to kill have enough time to find a reason why we shouldn't do so. And on to Iran.....

Cheers,
 

John:

Now, if you follow my suggestions, the death penalty WOULD be a deterrent.

Didn't read Prof. Balkin's post, didja?

Cheers,
 

"Now, if you follow my suggestions, the death penalty WOULD be a deterrent."

Capitalizing "would" will not make it so. No amount of arbitrary or cruel procedures, such as John suggests, will make murderers rational. A letter to the editor in today's NY Times states, "My personal experience from visiting prisoners on death row over many years is that they were often high on alcohol or drugs, were not thinking of consequences, and did not think that they would be caught."
 

Okay. Even if my 8 procedures wouldn't deter the death penalty, few can argue that the system unfairly metes out these convictions. A trail is a trail, kiddos. That's when the discovery, arguments, evidence, and all sides are supposed to do their business. The appeals process delays justice and is often about rhetoric and scoring points to forestall a degree. My system says: put up now or shut up and get on with the death sentence. If you can't summarize reasons for an appeal briefly and cogently without a Sophist's ornate rhetoric then your appeal is unconvincing and about your objection to the death penalty in general. Remember, dudes (or dudettes), I said "if" the death penalty is the law. Look: death rows are a financial and moral waste which, as practiced now, unfairly disadvantage both victims, survivors, and the convicted. MOST of these convicts actually DO commit the murder. Why is that somehow LOST on people!

So I say: do my 8 point process and then if the appeal fails: blam, blam, blam to the head; clean up; move on. Death--and any punishment--is always un-pleasant.

Lastly, I guess a lot of you people have never had a family member, friend, or loved one killed by a bloodthirsty 1st degree murderer and had to wait years while the person actually gets to live, write a book, get decent food, get married (yes!), father a son through sperm donation (yes, this happened) and other things--all on death row. But, I have experienced these things in the lives of some of my former clients. And in most of my prosecutions, the murderer admitted the deed and people still come out of the woodworks to log up the system with appeals.

How dare you forget the victims and their suffering!

After a brief appeal, get on with it and get rid of these people and their drain on our nation's financial and justice-centered health!
 

Whoops! I meant, "a trial is a trial"!

I hike so I often make that spelling error!
 

"How dare you forget the victims and their suffering!"

So locking up murderers for the rest of their lives constitutes forgetting the victims and their suffering. How dare you forget the more than 124 death row inmates who were released because they were innocent -- how many of them would have survived your speedy execution plan? Here is the list of 124: http://www.deathpenaltyinfo.org/article.php?scid=6&did=110
 

Let me explain why I said that more than 124 innocent people have been released from death row, even though the Death Penalty Information Center link I provided lists 124. Its list is limited to those whose "conviction was overturned AND i) they were acquitted at re-trial or ii) all charges were dropped [or]
b) they were given an absolute pardon by the governor based on new evidence of innocence." There are also cases in which the prosecution uses the threat of a retrial to coerce the defendant to accept a plea bargain for a sentence of time served, which, of course, is an offer that the defendant can't refuse. It saves the state from having to admit that it convicted an innocent person and saves it from paying him restitution for the time he spent in prison.
 

You said:

"The question of whether they deserve death-- and whether it is morally just for the state to administer death-- is separate from the question of whether the threat of death would deter them."

The argument you're gesturing at is that some crimes are so horrific that those who commit them clearly morally deserve to die at the hands of the state.

This is a very interesting claim (and one I think makes a lot of sense, given that some of our normative intuitions about punishment trace back to the retributivist ideals embodied in Judaism), but I wonder if you've thought through the implications of your principle, at least as it applies to the United States' policy.

First, if most people believe that the death penalty should generally be available only if it deters criminal activity to a reasonable degree, then one would expect this democratic mandate to have more force than the normative argument you've introduced to reframe the question. And if this is so, then the empirical studies concerning how effective the DP is across a range of crimes would remain important in the public policy debates about when the DP qualifies as an acceptable punishment in the U.S.

Second, while I agree with your intuition that some crimes are so wretched that their perpetrators deserve to die, I'm not sure that most people would agree with your claim that the most important question is the normative one (is this crime sufficiently horrific?) rather than the utilitarian one (can we prevent crimes of type x by degree y if we implement the death penalty for those who commit x?).

Can you say more about why they should agree that utilitarian considerations are secondary or unimportant?

I do concede, however, that an advantage of your principle is that it makes it unnecessary to ask (and come up with answers) to the difficult questions of how much deterrence is needed to implement the DP for certain crimes.

Third, I personally think that forcible third-party (stranger) rape is horrific enough to justify killing, even through dastardly means, the perpetrator. But I doubt most people would agree. Why they wouldn't agree (sympathy for rapists?) is much less significant than what follows from the fact of disagreement: there's not really a fact of the matter as to what constitutes the kind of crime that deserves the DP. And that's a problem for the principle you're advocating as the means by which we should formulate DP policy.
 

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