Does It Really Matter If The Death Penalty Deters Murderers?

|

Opponents of the death penalty claim that it does not deter murder. Their implicit argument is that if there is no deterrence, then there is no need for the death penalty. In today's Washington Post, Harvard Law professor Cass Sunstein and Wharton public policy professor Justin Wolfers argue that the data on deterrence is murky at best. However, they suggest that the constitutionality of the death penalty may indeed hang on the deterrence argument:

Why is the Supreme Court debating deterrence? A prominent line of reasoning, endorsed by several justices, holds that if capital punishment fails to deter crime, it serves no useful purpose and hence is cruel and unusual, violating the Eighth Amendment. This reasoning tracks public debate as well. While some favor the death penalty on retributive grounds, many others (including President Bush) argue that the only sound reason for capital punishment is to deter murder.

It would be nice if the death penalty caused some would-be murderers to back down, but I actually find the deterrence argument mostly beside the point. The reason to retain the death penalty is vengeance, or as more polite people put it, retribution.

Many libertarians are against the death penalty. They argue that the power to execute is just too dangerous to trust to the minions of the government. My esteemed reason colleague Jacob Sullum writing about the recent Supreme Court decision upholding the constitutionality of lethal injection, noted:

This strange fastidiousness about making murderers as comfortable as possible when we kill them suggests that capital punishment in this country is ultimately doomed.

It's not doomed because it violates the Eighth Amendment's prohibition of "cruel and unusual punishments," contrary to what Justice John Paul Stevens now seems to think. As Justices Antonin Scalia and Clarence Thomas point out in their concurring opinions, a penalty explicitly envisioned by the Constitution (which refers to capital cases and says the government may not take someone's life without due process) can hardly violate the Constitution.

No, capital punishment is doomed because most Americans, including many who ostensibly support it, are not truly at ease with the idea of killing a man in cold blood. On balance, that is probably a good thing.

Recently, I was talking with an Episcopal priest friend about the death penalty and she thought she was playing a moral trump when she argued that if I wouldn't pull the switch to execute someone, then I couldn't be for it. I was puzzled by this argument since I would have no problem, for example, with pulling the switch on the person who cold-bloodedly and intentionally killed my wife. That observation ended the discussion. One of the chief reasons for having the state execute is not to spare the feelings of the survivors of murder victims, but to disrupt the development of perpetual vendettas.

That being said, in the era of post-conviction exoneration through DNA testing, I have become much more uncomfortable about the possibility that an innocent person might be executed.

Advertisement

NEXT: Let the Gaymes Begin

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. The death penalty could be a useful tool in the war on drugs. I think it should be used as much as possible to prevent prison crowding, for all violent crimes like murder, rapes and drug possession.

  2. The death penalty has always been about vengeance I think; or perhaps more accurately, if you choose to remove yourself from a system that respects the right to life by denying it to someone, you have no real standing to say that your right to life should be respected. Personally, I’ve always found any deterrence effect to be a side benefit.

    I have become much more uncomfortable about the possibility that an innocent person might be executed.

    I have no moral qualms about the death penalty in principle; However, the more one learns about just how messed up our criminal justice system is (both innocently and deliberately), I think you’d be… ill advised… to support it as a matter of policy.

    -K

  3. I see no moral or ethical dilemmain the execution of people that commit murder. And I strongly disgree that a jury deliberating and deciding to execute a murderer is also murder. That cheapens the definition of murder.

    However, there is no way I’m willing to put that power into the hands of flawed people operating in an incoherent system of justice.

  4. Synchronicity again

  5. The death penalty does deter murder, there is no debate about that. The question is if the death penalty is a greater deterrent than life in prison, which it does not appear to be. Life in prison appears to do the job.

    I am against the death penalty, like most Libertarians, mostly because it is irreversible. If the government makes a mistake (which it will, more times than not), there is no way to undo the punishment.

    However, the threat of death and violence is the source of all state power. The only people who can truly claim to be against the death penalty in all forms are anarchists.

    The best thing anti-death-penalty advocates could do is lobby for mandatory life in prison for all first degree murder convictions. Many people support the death penalty because they are worried that convicted murderers will be released after only serving a few years of their sentence (which is quite common).

  6. Many libertarians are against the death penalty. They argue that the power to execute is just too dangerous to trust to the minions of the government.

    That’s me.

    Too many corrupt cops.
    Too many “ambitious” district attorneys.
    Too many incompetent public defenders.
    Too many judges lacking judgement.*

    No fucking way do I trust the government to get it right.

    * I would add too many stupid jurors but I’m feeling charitable towards my fellow citizens today.

  7. Why does no one ever bring up recidivism in these discussions? The recidivism rate of career criminals drops to zero after the death penalty, which can’t be said for any other form of punishment. Surely that’s a public good, and inarguably effective.

  8. The death penalty has always served as a deterrence in one instance and that is the felony murder rule. The death penalty creates an incentive for people not to murder witnesses of a crime. As courts have moved away from the strict application of the felony murder rule, not surprisingly the deterrent effect of the death penalty has fallen. Crimes of passion and serial killers and the like are unlikely to be deterred by the death penalty.

    Sadly, the lack of a death penalty combined with the three strikes rule is making the public much less safe. You can’t have a three strikes rule and no death penalty. What we are doing is producing violent criminals who get out of prison and know that if they are caught again, they are never getting out of prison but are in no danger of getting the death penalty.

    Lastly, the lack of a death penalty has destroyed our ability to control our prisons. Without the death penalty you have large numbers of prisoners who have no hope of ever getting out of prison and no risk of the death penalty free to pray on other prisoners. Our response to this problem has been to create horribly inhumane super-max prisons for the most violent offenders and to live with the fact that gangs are in effective control of prisons.

    Anti-death penalty advocates never offer alternatives to the death penalty beyond, just lock them up forever. Well, locking people up forever is a hell of a lot more complicated than it seems.

  9. The death penalty could be a useful tool in the war on drugs. I think it should be used as much as possible to prevent prison crowding, for all violent crimes like murder, rapes and drug possession.

    Juanita, my internet soulmate,
    Meet we must and meet we shall.

    ?The guilty undertaker sighs,
    The lonesome organ grinder cries,
    The silver saxophones say I should refuse you.
    The cracked bells and washed-out horns
    Blow into my face with scorn,
    But it’s not that way,
    I wasn’t born to lose you.
    I want you, I want you,
    I want you so bad,
    Honey, I want you.?

  10. The reason to retain the death penalty is vengeance, or as more polite people put it, retribution.

    Yep, right on the money. However,n the government has no business doing it once the person has been subdued.

    . . . I would have no problem, for example, with pulling the switch on the person who cold-bloodedly and intentionally killed my wife.

    Well, I would have no problem with you blasting big giant holes through the murderer in the act, or even nearby the act. I draw the line where they are no longer a physical danger to society. Once they are locked up, they had better not be a danger to the folks outside any more. If they get out, the guards need to be joining them in matching cells.

    Just my view.

  11. Recently, I was talking with an Episcopal priest friend about the death penalty and she thought she was playing a moral trump when she argued that if I wouldn’t pull the switch to execute somone, then I couldn’t be for it.

    I’ve never quite understood this view. It is akin, in my mind, to stating that unless you could butcher an animal you should be vegetarian. I’m too soft-hearted to do that, but I still eat meat. I also support hunting, though I could never in a million years kill an animal for sport. Nothing wrong with it, mind you, just I would feel bad for doing it.

    On the other hand, I would feel no qualms about executing a person whom I knew was guilty. I wouldn’t want to do it, but if I were the executioner I would be able to. Personally, I think that an executioner should definitely not enjoy it, or even particularly want to do it. It should be done for the sake of justice, impersonal retribution, not personal revenge.

    Not that, given the flaws in the modern justice system (American and otherwise), it should be done. Capital punishment as it is practiced is fundamentally unjust, and I am unsure that I would ever find any actual justice system sufficiently impartial to support it.

  12. Public Defender’s are woefully underfunded in terms of lack of access to the resources that DA’s have. In many jurisdictions their budgets are 3% of what a DA’s office has. It is not an issue of incompetent or not attracting the best and brightest but an issue of disparity of resources. While all they have to do is show reasonable doubt. The odds are stacked against them. Try getting a “brave man in blue” to get up on the stand for your client. The deck is stacked.

  13. There is some evidence that capital punishment does deter some murders. But, aside from revenge/retribution, there is another reason some people support death as a penalty for killers: not deterrence but incapacitation.

    To deter a future murder is always a bit hard to compute, what with the unpredictability of human choice, etc. But when a killer is himself killed, he is prevented from future killings.

    Indeed, incapacitation is the main reason people support the imprisonment of criminals. The criminals, having abridged the freedoms of their victims, lose their own right to freedom. That strikes most people as a fair, just balance. And a person who takes a life? Many seem dangerous for future such rights violations. So taking his life seems apt. It incapacitates, preventing THAT CRIMINAL from murdering again.

    I agree with much of the talk, above, about the dangers of capital punishment. The trouble with talk of deterrence is that it gets fuzzy so quickly. Deterring whom? Deterring criminals by means of incapacitation is the very least we can expect of a “justice system.” Detering beyond that? Well, that should be the effect of the whole system, not any one particular punishment. And the whole system must make a certain amount of sense, or its internal contradictions will yield perverse effects.

    Much has been written of the perverse effects of capital punishment for crimes of a less extreme nature than murder. (If robbers, say, are to be killed in retaliation, a robber, in a conflict, has little incentive not to kill to try to get out: he’s already slated for punishment to the maximum.) I am not aware of much study, however, of perverse incentives caused by NOT punishing “maximum crimes” with “maximum penalties.”

    Perhaps others who contribute here could point out such studies.

  14. I’ve never quite understood this view. It is akin, in my mind, to stating that unless you could butcher an animal you should be vegetarian.

    Yea, it is like saying that only people who have served in the military should be involved in any sort of policy setting for the military. Pretty silly proposition, IMHO.

  15. “Once they are locked up, they had better not be a danger to the folks outside any more.”

    But they are one hell of a danger to other prisoners. Is it your opinion that we have no duty to protect prisoners from one another? How exactly do you expect to be able to control someone who is a violent sociopath and knows that he has no hope of ever getting out of prison? How do we create an environment where people who will someday be released have a chance to reform themselves when we have prisons full of such people?

  16. All morality aside, deterrence is ineffective for one reason above all others:

    People (largely) don’t commit crimes operating under the assumption that they are going to get caught.

    Granted, there are a few crazy people who want to get caught, but generally speaking, you rob a house for the goods in order to use or sell those goods — difficult actions if you’re in the slammer.

    For a deterrent to work, one would have to think about the consequences of their actions before performing them. If this were a regular occurrence, there’d be far fewer criminals in the world.

  17. Deterrence should always be a secondary concern. The question about any punishment for a crime should be: Is this a just punishment?

    Whether a deterrent or not doesnt matter if it is just.
    Whether a deterrent of not doesnt matter if it is not just.

    CS Lewis had a very good essay entitled “The Humanitarian Theory of Punishment” or something like that. I think I found it online once. It is very good on this issue.

  18. just chiming in to agree with kinnath.

  19. Ignoring for a minute the data on deterrence, I’ve never understood the argument from a logical standpoint. I have a really tough time believing that murderers or potential murderers decide to commit the act based on whether they’d get life in prison or the death penalty.

  20. Ron’d retribution argument is presumably that delegating the right to kill onto the state is a good compromise. The alternatives are: let people exact their own vengeance, or let no one execute. The former may allow people to pursue private vendettas (vendetti?), while the latter may fail to satisfy society’s sense of justice.

  21. Life without the possibility of parole? Coventry. There’s are some actions that cash you out of the civilization game. You want to be an animal, go live like one.

  22. Probability seems to indicate that there HAVE been innocent people executed. So the real question is whether or not we are (occasionally) willing tolerate murdering an innocent person as part of maintaining capital punishment. This might seem unlikely, but if you’re seriously invested in the (functional or moral) value of retributive punishment then it might be worth considering, especially if you’re in favor of expanding it to other crimes (like child rape). After all, you’ve already allowed for murder in some instances, and thats the first step.

    I guess my point, then, is that its doubtful whether or not the argument can be reconciled, at least as long as there is unmoving disagreement about the justification of murder in general.

    Personally I’m ambivalent; both sides have to answer tough questions.

  23. “Ignoring for a minute the data on deterrence, I’ve never understood the argument from a logical standpoint. I have a really tough time believing that murderers or potential murderers decide to commit the act based on whether they’d get life in prison or the death penalty.”

    But people decide whether to do things like kill witnesses or cops based on those concerns. No one wants to turn an ordinary robbery or drug conviction into a trip to the electric chair. But if someone is facing life in prison as a third strike for the robbery or drug offense, why not kill the cop or the witness? What do you have to lose?

  24. John,

    Was that a bunch of hysterics or are you joking?

    But they are one hell of a danger to other prisoners.

    Better not be. That is why we use so many cells and have all those guards, providing a controlled environment that should be safe too. As I alluded to before, the guards should be held responsible. Apparently, being held responsible for safety is a logical extension to what I wrote that missed you.

    Is it your opinion that we have no duty to protect prisoners from one another?

    No and I have no idea where you would get the idea that I do and ask such a stupid question in that manner.

    How exactly do you expect to be able to control someone who is a violent sociopath and knows that he has no hope of ever getting out of prison?

    Same way we control, or should be controlling, the rest of them. See above for some answers that should have popped into any rational mind.

    How do we create an environment where people who will someday be released have a chance to reform themselves when we have prisons full of such people?

    We already have prisons full of people. Are you aware, seems not, that people sentenced to the death penalty are not immediatly executed before the judge and jury? That was rhetorical.

    From the way you came out thrashing, I really don’t see any rational discussion coming from this.

  25. Death penalty should be voluntary. Whenever you run for public office you are volunteering for it should you be convicted or betraying your oath/constituents.

  26. Not that, given the flaws in the modern justice system (American and otherwise), it should be done. Capital punishment as it is practiced is fundamentally unjust, and I am unsure that I would ever find any actual justice system sufficiently impartial to support it.

    I find little moral distinction in erroneous capital sentencing over erroneous life imprisonment.

    Further, this is not about vengeance or restribution, it IS about justice. Crimes against persons cannot be rectified by monetary means or servitude so we “punish”, both to discourage others but also by depriving/rescinding the rights of the criminal. Since murderers deprive their victims of all rights, it is only just that the state retain the same ability when IT chooses to do so by due process.

    What we need is better quality control in capital cases to help obviate the problems already known (like the Dr. Haynes of the world), not acquiescence to live with crappy judicial administration just because the death penalty is off the table.

  27. a penalty explicitly envisioned by the Constitution (which refers to capital cases and says the government may not take someone’s life without due process) can hardly violate the Constitution

    Oh it most certainly can, if you subscribe to the hardly outlandish view that any conflict between the 1789 document and subsequent amendments (or between earlier and later amendments) must be resolved in favor of the later text (cf., the “incorporation doctrine” now in the news again after Heller).

  28. I find little moral distinction in erroneous capital sentencing over erroneous life imprisonment.

    One is reversible and one isnt? Seems like a pretty major moral distinction to me.

  29. Does It Really Matter If The Death Penalty Deters Murderers?

    No.

    It is a bad idea no matter the outcome since the cost of a wrong decision is too high to justify the pragmatic effects no matter what they are.

  30. “Better not be. That is why we use so many cells and have all those guards, providing a controlled environment that should be safe too. As I alluded to before, the guards should be held responsible. Apparently, being held responsible for safety is a logical extension to what I wrote that missed you.”

    Have you ever been to a prison? Do you know how few guards there are for a given number of prisoners? The only way you can control truly violent inmates is to put them into super max conditions, which I would argue is more inhumane than the death penalty.

    Under what theory do you hold the guards responsible for inmate behavior? Further, who exactly are you going to get to be a guard when they know that if inmate Pyle kills or rapes someone he is going to be held responsible? Moreover, that would just create an incentive for the guards to abuse prisoners. Better to have control and beat the shit out of them every day than risk being held responsible. That is without a doubt one of the most rediculous things I have ever read on here. You are ussually so much smarter than that. That sounds like something that would come from a troll.

    As far as people under the death sentence, they are housed separately from the rest of the population because there is no way to control them. Without the death penalty as a deterent, we have no choice but to take lifers and keep them isolated from all other prisoners. Since we don’t have the money to put all of them in supermax, what happens is most of them are left to pray on other prisoners. You cannot talk about the death penalty without considering its effect on the conditions of our prisons.

  31. BTW, what exactly is a Death Penalty Ringtone, as offered in the ad above this page?

    When someone call, do you hear the sound of someone’s neck snapping over and over again?

  32. John

    Without the death penalty as a deterent, we have no choice but to take lifers and keep them isolated from all other prisoners.

    I’ve worked in a prison, briefly, and think you are forgetting an important element in the control of prisoners.

    A “due process death penalty” is not anymore of a deterrent to someone in prison than it is for someone outside of prison. However, the guards can use deadly force to protect themselves or others when the situation justifies it.

    For the most part, people comply with the cops because they can kill you right now if they perceive you as a threat, not because they may put you in prison/ use due process to exact some future punishment.

    The same dynamic works in prisons…supermax or not.

  33. robc said:

    Deterrence should always be a secondary concern. The question about any punishment for a crime should be: Is this a just punishment?

    I come from a different school of thought. I don’t see anything “just” in punishment for a crime. Deterrence is the only defining factor for me. If you’re not attempting to deter something, then why are you enacting punishment?

    (But, as others have stated, the deterrence possibility of capital punishment would only be acceptable if the state was 100% infallible in its convictions. And even with that, I still disagree with it on “cruel and unusual” grounds.)

  34. The death penalty does deter murder. Come on with the number of murders each year the prisons will fill up in 10 years without the death penalty.

  35. The idea of deterrance is a bit odd. It says that we kill people we think are killers because that will stop other people who are thinking about being killers. Even if we grant that argument the deterrance issue is problematic. If it works it would only do so if others knew about the executions. Second, they would have to have a reasonable certainty that they will be arrested and convicted and sentenced to death. Most criminals are short sighted and don’t think that far ahead.

    But assuming they do then the actual guilty of the person being executed is not particularly important. All that matters is that the public assumes the person executed was guilty. If it is right to kill one person to deter others from committing crimes then anyone executed, provided we claim they were guilty, would suffice. Randomly arrested and executing innocent people would have the same effect.

    Clearly the deterrance effect alone can not justify executions since it would work regardless of the guilt or innocence of the person being executed provided the public is deceived. And, of course, to some degree that is happening now. It is reasonable to assume that some unknown number of individuals, innocent of any crime, were executed so as to deter me and you from killing. And many conservatives seem to think that is a reasonable price to pay — of course it is being paid with the lives of other people. But then conservatives are often in favor of policies that cost other people their lives — such as Iraq. They just get more concerned when it is their own lives at stake.

    The other odd thing about conservatives is that these are people who don’t trust the state to delivery a letter across town but are willing to allow it to execute people and get it entirely right. I might be persuaded to go along with them if they could show me one government program which actually works 99.999% of the time. Of course that is provided I’m not the victim in the .001% when it doesn’t work.

  36. MP,

    The problem with deterrence is that no guilt needs to be found. As long as the state convinces the people that you are guilty, punishing you provides deterrence (if it does).

  37. They argue that the power to execute is just too dangerous to trust to the minions of the government.

    See that is why I love Reason they say what I have been thinking for years.

    I would love to have the state murder murders only i can’t trust the state not to screw it up somehow.

  38. The question could be instead of deterrance on the typical would-be-murderer, but the marginal would-be-murderer.

  39. Death Penalty Deterrence?

    “Boy, I’d really like to kill that person but I won’t because I’m scared of the death penalty. If only I could be assured that my only penalty will be to spend the rest of my life getting anally raped in a cage. It would be so totally worth doing then. Damn these genius politicians and their incredibly effective and cheap solutions to crime!!!!!”.

    Next up on the list of incredibly stupid things to believe: “Its safer to not buckle up because then you can be thrown clear of an accident and land safely and unharmed instead of being trapped inside the wreckage”

  40. If you wish to deter repeat offenders for any violent crime, just amputate their hands and legs, and blind them. They can still listen to the radio and eat.

    It’s strange how that sounds so horrible and inhumane, but killing someone is all right.

  41. just amputate their hands and legs, and blind them. They can still listen to the radio and eat.
    It’s strange how that sounds so horrible and inhumane, but killing someone is all right.

    For a proven murder?

    It just sounds inefficient.

  42. Next up on the list of incredibly stupid things to believe: “Its safer to not buckle up because then you can be thrown clear of an accident and land safely and unharmed instead of being trapped inside the wreckage”

    Add to that list:
    It is safer to ride my motorcycle without a helmet because the increased risk of neck injury caused by the helmet (there is no increased risk) is greater than the reduced risk of a traumatic brain injury (the helmet reduces this risk by at least 50%).

    It’s strange how that sounds so horrible and inhumane, but killing someone is all right.

    Says something about our societal values regarding the handicapped, I believe.

  43. wow for some reason I can’t type “murderer” today.

  44. I come from a different school of thought. I don’t see anything “just” in punishment for a crime. Deterrence is the only defining factor for me.

    So is it OK to punish an innocent person, just as long as people *think* he’s guilty, so that the punishment will have a deterrent effect? Remember, deterrence is “the only defining factor” for you, and justice (including, e.g., whether he actually deserves the punishment) is irrelevant.

  45. And I strongly disgree that a jury deliberating and deciding to execute a murderer is also murder.

    Well, I should think so. Because if a jury is guilty of murder if it votes to put a murderer to death, then it’s guilty of kidnapping if it votes to put a kidnapper in prison.

  46. wow for some reason I can’t type “murderer” today.

    I hear this to the melody of Tom Waits’ The Ocean Doesn’t Want Me Today.”

    I just can’t type murderer today
    But I’ll be back tomorrow to play
    And the strangles will take me
    Down deep in their brine
    The mischievous braingels
    Down into the endless blue wine
    I’ll open my head and let out
    All of my time
    I’d love to go drowning
    And to stay and to stay
    But I just can’t type murderer today.

    I’ll go in up to here
    It can’t possibly hurt
    All they will find is my beer
    And my shirt
    A rip tide is raging
    And the life guard is away
    But I just can’t type murderer today.
    I just can’t type murderer today.

  47. If you wish to deter repeat offenders for any violent crime, just amputate their hands and legs, and blind them. They can still listen to the radio and eat.

    It’s strange how that sounds so horrible and inhumane, but killing someone is all right.

    Or make them live out the rest of their lives in a tiny cage, surrounded by extremely dangerous people and exposed to all manner of violence and depravity.

  48. Seamus said:

    Remember, deterrence is “the only defining factor” for you, and justice (including, e.g., whether he actually deserves the punishment) is irrelevant.

    That’s not what I said. There is a clear difference between punishing someone who is guilty of a crime and punishing someone who is innocent. Punishing an innocent makes them a victim of the state, which is in no way justifiable. My point is that, once you have determined someone’s guilt, why punish them? I don’t morally agree with the retribution angle. Thus, the only reason remaining is deterrence, either of that particular criminal committing a crime again, or of another potential criminal. The deterrence angle sets up clear consequences, and thus is a utilitarian/unemotional response to a criminal act. Retribution, however, is purely an emotional response, and I don’t believe has any rational basis, and thus it has no business being included in the punishment phase of the state.

  49. Retribution, however, is purely an emotional response, and I don’t believe has any rational basis, and thus it has no business being included in the punishment phase of the state.

    Except for the fact that retribution is in punishments all over our justice system. No, not with the finality of death, but many sentences handed down by many courts have a sting of retribution to them. Take extremely high fines handed down in civil cases. When the fines are multiples of the original damages, that’s the sting of retribution. To paraphrase some postings on this very topic, punitive damages are supposed to “hurt, bad”.

    Retribution is a part of justice and sentencing, whether we want to admit it or not.

  50. J sub D – 3:51 PM

    See, we are of the same mind.

  51. I am against the death penalty on the grounds that the court system sucks. For proof, see how DNA evidence exonerates “criminals.”

  52. But they are one hell of a danger to other prisoners. Is it your opinion that we have no duty to protect prisoners from one another? How exactly do you expect to be able to control someone who is a violent sociopath and knows that he has no hope of ever getting out of prison? How do we create an environment where people who will someday be released have a chance to reform themselves when we have prisons full of such people?

    Prisons have different tiers for prisoners depending on their behavior, or so I hear.

  53. Besides being irreversible in the case it turns out to be wrong, in a lot of cases it’s too lenient. People voluntarily commit suicide all the time because they think it means 72 virgins or a ride on a space comet or something. Can’t we bring back hard labor?

  54. One of the chief reasons for having the state execute is not to spare the feelings of the survivors of murder victims, but to disrupt the development of perpetual vendettas.

    Wow, I never thought of that, but it is a great point.

  55. Daniel Reeves,

    Prisons have different tiers for prisoners depending on their behavior, or so I hear.

    While what you say here is true, there is considerable mixing of violent criminals with non-violent in all but minimum security prisons. I worked in a medium security prison…and we had everything from violent rapists to serial killers and hit-men right next to guys in for possession or accounting fraud.

    Lifers were mixed with short-term prisoners in all aspects of prison life.

  56. Did not the man who tried to kill Teddy Roosevelt go from state to state, following Roosevelt, until he got to one where there was no death penalty?

    That’s someone who the consequences of his actions seriously.

    Still, as I stated before, it’s the total presence of the justice system that deters, not one penalty for one crime.

    Further, as others have suggested, high probability and celerity of punishment, together, have far more deterrent effect than an unlikely severity. Bentham knew this. Studies have shown this to be true. It’s not really even much of an argument any longer.

  57. TYPO in last post:

    That’s someone who TOOK the consequences of his actions seriously.

  58. Death penalty not a deterrent?

    It sure kept me from ripping the hearts and livers out of that knuckled-headed couple with the ill-trained dog that tried to take a chunk out of my knee outside my coffeehouse the other day.

  59. i>That’s not what I said. There is a clear difference between punishing someone who is guilty of a crime and punishing someone who is innocent. Punishing an innocent makes them a victim of the state, which is in no way justifiable.

    You mean it’s unjust, in the sense that the innocent person doesn’t deserve it? So why can’t it be unjust to put a murderer to death, because he deserves it? (Or to put it another way, how do you justify the claim that he doesn’t deserve it?)

  60. Retribution, however, is purely an emotional response, and I don’t believe has any rational basis, and thus it has no business being included in the punishment phase of the state.

    And if you throw aside consideration of what the perp deserves, then your repugnance at the idea of punishing an innocent person, even when it might have a deterrent effect that would cause a net decrease in the number of deaths overall, is similarly a purely emotional response.

    Gee, this is fun! I’m glad two can play this game.

  61. So why can’t it be unjust to put a murderer to death, because he deserves it?

    I meant to say “why can’t it be *just* to put a murderer to death, because he deserves it?”

    Yes, I know; preview is my friend.

  62. We dont need a death penalty
    We need a Cobra penalty
    Crime is the disease
    And i’m the cure

    http://www.youtube.com/watch?v=G5fUOxPyt5U

    [the following is the libretto for the forthcoming Cobra Opera based on this sequence]

    Hey dirtbag
    You’re a lousy shot
    I dont like lousy shots

    You wasted a kid
    for nothing
    Now I think its time
    to waste you

    You say you’ll
    blow this place up?
    Thats OK
    I dont shop here

    Just relax amigo
    You want to talk?
    I’m a sucker for conversation

    I dont want to
    talk to you
    bring the tV
    camerasin here now!

    cant’t do that

    why?

    Cause I

    dont

    deal with psychos

    I put em away (echo effect)

    I’m a hero! A hero!
    A hero of the new world!

    No.
    You’re a disease
    And I’m the cure

  63. Seamus said:

    (Or to put it another way, how do you justify the claim that he doesn’t deserve it?)

    Punishment need only to be about consequences for violating a rule of society. That punishment acts as a deterrent, encouraging society’s denizens to continue obeying the rules. Retribution serves no role in this system. A victim, or a victim’s close associates, may happen to derive pleasure (via feeling retribution) from the punishment of a criminal, but from a societal standpoint, in terms having and enforcing a set of rules, the retribution angle should not come into play.

    It only continues to do so, as Paul points out above, because we’re human, and thus don’t make purely logic oriented decisions. This leads to the concept of Retribution being bound tightly to our legal system, but that need not be, nor is there any valid reason for it to be, the case.

    Seamus said:

    And if you throw aside consideration of what the perp deserves, then your repugnance at the idea of punishing an innocent person, even when it might have a deterrent effect that would cause a net decrease in the number of deaths overall, is similarly a purely emotional response.

    When the basic tenet of society is the protection of individual rights, punishing innocents to achieve the utilitarian goal of crime deterrence is violating the fundamental basis of said society.

  64. I don’t know if the death penalty is a deterrent, and I don’t care. Some people have forfeited their right to breathe the same air I do.

  65. The only people who can truly claim to be against the death penalty in all forms are anarchists.

    Present.

    As far as the retribution vs deterrence vs incapacitation angle goes, the latter two have the problem of basing punishments on a principle that has nothing to do with the severity of the crime. (And, as Seamus points out, in the case of deterrence, nothing to do with the guilt or innocence of the punished.) The only justification for punishment that requires both sureness of guilt and proportionality of punishment and crime is retribution (or justice if you want to call it that).

    I’ve never quite understood this view. It is akin, in my mind, to stating that unless you could butcher an animal you should be vegetarian. I’m too soft-hearted to do that, but I still eat meat. I also support hunting, though I could never in a million years kill an animal for sport. Nothing wrong with it, mind you, just I would feel bad for doing it.

    I think if this is really your position, you should probably examine it further. If it would actually seriously make one feel bad to kill an animal for food, maybe that person belongs in the vegetarian camp. (I say this as someone who is also both a non-hunter and a meat-eater and so maybe should examine that myself.) I do think this is considerably different from Guy’s example of military experience being viewed as a prerequisite to formulating military policy, as this example seems to indicate that the person in question actually does feel killing animals (even for food) is wrong (or some close analogue) by stating that they feel bad. This looks to me like a moral qualm, in which case, you should probably pay attention to it rather than dismiss it.

    By the way Guy, I was surprised by:

    Guy Montag:
    However, the government has no business doing it once the person has been subdued.

    Well, I would have no problem with you blasting big giant holes through the murderer in the act, or even nearby the act. I draw the line where they are no longer a physical danger to society. Once they are locked up, they had better not be a danger to the folks outside any more.

    I agree, more or less: not about when the government has any business killing, as I think the answer to that is “never”, but that once someone is no longer a danger to you or others, the time for justified killing has passed. I just didn’t expect it from someone I’d always seen as more or less of a conservative – I’d always expected you to be pro-death penalty.

  66. When a criminal justice system willingly substitutes the narcotic pleasure of vengeance for unconditional mercy, it ceases to be worthy of the term just!

  67. “…if you subscribe to the hardly outlandish view that any conflict between the 1789 document and subsequent amendments (or between earlier and later amendments) must be resolved in favor of the later text (cf., the “incorporation doctrine” now in the news again after Heller).”-KipEsquire

    Only if there is an amaendment existing that supersedes the language in question. Do you have something in mind, or were you just being nit-picky for the hell of it?

  68. Would putting murderers in a drug-induced coma for the rest of their lives be a good substitute for the death penalty?

  69. John,

    Like I said, there was no hope for a decent discussion on this one.

    Again, it must be a total surprise to you that we already do have prisons and this is not a new venture for the government. Expressing total amazement that jailers should be held accountable as jailers is just beyond anything reasonable to be discussed.

    Quite simply, if someone is put in the custody of the government then the government is responsible for the safety of that person and those around them. This government has employees, who are part of the government, and those employees should be held accountable for their action or inaction.

    If this is truly too hard for you to understand, then too bad, I really do not care enough to bother clarifying any more than I desire to explain to you why water is wet.

    Someone Who Doesn’t Want to Lose His Job,

    Perhaps if you would read what people actually write, rather than assigning your own imagined biases to them, you would not be so surprised so often.

  70. Paul,

    Or make them live out the rest of their lives in a tiny cage, surrounded by extremely dangerous people and exposed to all manner of violence and depravity.

    Isn’t there a club like that in Baltimore?

  71. Public Defender’s are woefully underfunded in terms of lack of access to the resources that DA’s have. In many jurisdictions their budgets are 3% of what a DA’s office has. It is not an issue of incompetent or not attracting the best and brightest but an issue of disparity of resources. While all they have to do is show reasonable doubt. The odds are stacked against them. Try getting a “brave man in blue” to get up on the stand for your client. The deck is stacked.

    +1 The answer is spending parity.

  72. Once the backlog of old cases works its way through the system, the “era of post-conviction exoneration through DNA testing” will rapidly give way to the era of rock-solid convictions based on DNA evidence. Does that change anything?

  73. Once the backlog of old cases works its way through the system, the “era of post-conviction exoneration through DNA testing” will rapidly give way to the era of rock-solid convictions based on DNA evidence. Does that change anything?

    DNA evidence is better at excluding suspects than at firmly establishing their guilt, so the era in question will never arrive.

  74. DNA evidence is better at excluding suspects than at firmly establishing their guilt, so the era in question will never arrive.

    In what way?

  75. In what way?

    You can take a small chunk of DNA (not the whole code) and demonstrate that your client’s DNA doesn’t match this small section of DNA and therefore can’t be the criminal (with a certain margin of error).

    On the other hand, a match in the sampled portion of the DNA does not mean that there is a match on the unexamined sections of DNA, so you can’t use the match to prove guilt.

    If you were using the entire genome (which is not done in criminal cases) the chance of these kinds of false positives would go be diminished but it would never go away completely.

  76. Michael,
    I asked the same question elsewhere, but did not get an answer either.

    Neu,
    Meh. As you said the uncertainty is controllable, as in you can get less if you try harder. I think a better unknown is: the genetic material was there, but how did it get there. cf: Hollywood

  77. When the basic tenet of society is the protection of individual rights, punishing innocents to achieve the utilitarian goal of crime deterrence is violating the fundamental basis of said society.

    What’s your definition of “protection of individual rights”? Isn’t, for example, putting a guilty man in jail violating his individual rights? If not, why not? Could it be perhaps that he forfeited his right to freedom when he committed the offense? In other words, he *deserved* to be put in jail. But isn’t that judgment “purely an emotional response”?

  78. The death penalty in practice is a mess, but it just doesn’t sit well that a homeless person can kill a few people and get three squares for life with access to cable TV and reading material. Paid for with my tax dollars.

  79. JB,

    The death penalty in practice is a mess, but it just doesn’t sit well that a homeless person can kill a few people and get three squares for life with access to cable TV and reading material. Paid for with my tax dollars.

    Then go ahead and begin the initiative for means testing for murder sentencing.

  80. “Could it be perhaps that he forfeited his right to freedom when he committed the offense? ”

    No, because by definition, one can never give up a right. At least if we are to believe in the definition of rights whereby “all men are endowed by their creator with certain INALIENABLE rights….” We may be debated definitions here, but to me a right is something that can never be taken away, under any circumstances. A privilege, on the other hand, can be taken away.

    So the question is what do we mean by “rights”. Do we mean inalienable rights or privileges. If we mean privileges, then we should refer to them as such. The funny thing is though, I think a lot more people would be uncomfortable referring to living as a privilege. Something about that description seems rather creepy to me.

  81. No, because by definition, one can never give up a right. At least if we are to believe in the definition of rights whereby “all men are endowed by their creator with certain INALIENABLE rights….” We may be debated definitions here, but to me a right is something that can never be taken away, under any circumstances. A privilege, on the other hand, can be taken away.

    Well, then, I guess either that putting a man in prison for committing a crime is a violation of his rights, or freedom is just a privilege rather than a right.

  82. Perhaps freedom is a privilege, or at least the freedom to walk about the land and interact freely with other free citizens. I think calling that sort of freedom a privilege would be something most liberals and conservatives would be comfortable with. But I’m not so sure that there are all that many people who would be comfortable calling the freedom to live a privilege. I know that I’m not all that comfortable with that label, as it seems to set us down a very slippery path. I’d much rather call living an inalienable right, and living freely a privilege.

  83. I think that for the smaller crimes such as drug dealing or burglary should have other types of punishment so they do not have to fill of the prisons and leave them for the higher crimes. I do not think that killing them off is the answer. Plus it cost so much to kill them–$2+ million in a oppose to a few hundred thousand dollars to keep them in jail. http://pn.psychiatryonline.org…..ll/37/14/2

    That money they save from killing them can either go back to the taxes and use the money for something else or build more prisons.

Please to post comments

Comments are closed.