25 December 2006

Debating the Death Penalty

The Objectivist
Dunkirk-Fredonia Observer
December 20, 2006

In the United States, murderers are rarely executed. In 2003, 14,493 persons were murdered while only 65 murderers were executed. In thinking about whether to abolish the death penalty, we should begin by distinguishing the two main justifications of punishment. On a retributivist account, criminals should be punished because justice demands it. On a consequence-based account, criminals should be punished because doing so makes the world a better place.

Retributivists usually assert that punishment should be proportional to the crime. On this theory, then, murderers and rapists should receive punishments that are roughly as severe as the harm they caused. For example, few think that murderers or rapists should be given probation or a sentence of only a few months in prison. The idea behind this justification is that persons are morally responsible agents and as a result they can and sometimes do forfeit their right against punishment, whether it takes the form of a fine, incarceration, or execution.

One problem with retributivism is that it also supports torture. Consider persons who commit a rape-murder or multiple murders. Retributivists claim that we should punish them in a way that is as severe as the harm they caused, or at least get as close as possible to doing so. On retributivist grounds, executing these bad boys isn't enough, we should torture them first. This doesn't require high tech solutions; we could use many of ingenious means that despots have used over the years, including bone breaking and other forms of mutilation, dog rape, and electrical shocks to private parts.

Some retributivists, such as 18th-century German philosopher Immanuel Kant, claim that torture is unjust because it fails to respect the murderer's dignity. His idea was probably that torture removes, albeit temporarily, the murderer's ability to lead a self-shaping life by removing his rationality (ability to reason) and free will (ability to act on his reasoning). However, execution does the same thing. You can just see retributivists saying, courtesy of Homer Simpson, "D'oh." A few retributivists think that torture is an excellent idea precisely because murderers forfeit their rights. However, most people don't think that that we respect a prisoner if we repeatedly shock him when he is cowering in his own urine and feces.

In addition, we don't normally think that we have a duty to give persons what they deserve. For example, we think that employers may hire the best person for a job even if he isn't the most deserving. For example, a NFL team doesn't wrong anyone when it replaces a hard-working veteran who plays through pain with a flashy trash-talking rookie. Desert is also irrelevant to a range of state policies, including education, inheritance, and welfare.

On the second account, punishment is justified because it makes the world a better place. The way usually it does this is to make persons' lives go better and one of the best ways to measure this is to look at the costs and benefits of various options. On this cost-benefit analysis the death penalty is probably a loser. The costs of the death penalty are substantial in large part due to pricey trials and subsequent appeals. In 1992, the Dallas Morning News estimated that it costs Texas $2.3 million per death penalty case, which is about three times the cost of lifetime imprisonment in the highest security cell. In 1988, the Miami Herald estimated that the death penalty costs Florida $3.2 million per execution. In 1993, Philip Cook and Donna Slawson estimated that each execution costs North Carolina $2.16 million more than a life imprisonment. These are costs that only a school board could love.

The benefits aren't as clear. One purported benefit is deterrence. The problem is that the studies on the deterrent effect of the death penalty are mixed and controversial.

A second purported benefit is the psychological benefit to citizens. However, this benefit is probably not weighty enough. The likelihood of being murdered is very low. For example, in 2003 only about 1 in 20,000 persons in the U.S. was murdered. When a murder does occur, the chance of a murderer being executed is also low. In 2003, there was roughly 1 execution for every 223 murders. The average taxpayer would probably not to pay too much to ensure that if murdered, his murderer will have a 1 in 223 chance of being executed rather than a 0 in 223 chance. Also, the aggregate costs of the death penalty are significant. In 2000, the Palm Beach Post found that the state of Florida spends $51 million per year for the death penalty above and beyond what's needed for life imprisonment (note this figure is higher than the Miami Herald's estimate). Between 1977 and 2004, Texas executed 336 persons. If the cost were $2.3 million per execution, that's $773 million. It’s hard to believe that even when we put a thumb on the scale for psychological benefits, the benefits outweigh these costs. Until the death-penalty process is streamlined, it's probably too expensive.


The Theist
Dunkirk-Fredonia Observer
December 20, 2006

Not all killings are the same. Accidental killings, or those due to negligence, aren't in the same moral category as murders. And even among murders--intentional, morally wrong killings--there are differences. Some murders are the result of a drunken fight or a domestic quarrel which got out of hand. Others are pre-planned, what we call "cold-blooded." We might reserve the death penalty for these latter murders. Killing another human being is obviously a very serious matter. Why, then, do so many societies decide to employ the executioner?

Human life is a very precious thing. When someone steps so far out of line as to intentionally kill another, outside the context of any war or police context, society declares the value of human life by taking the killer's life as retribution for his crime. Some killers, it seems, just deserve to die--that they should go on living, even in a prison, seems unfitting. This is a fundamental moral intuition which probably most people have, at least at some point, although it can be extinguished by various ethical and religious beliefs. Perhaps the best way to highlight it, is to consider some objections to it.

"Killing the killer won't bring the victim back." What an irrelevant point, as no one ever fantasized that it would.

"Killing the killer makes us just like him." No, it doesn't. Executions and murders both involve killing a human, but they are not morally equivalent. The murderer does so for his own non-rational reasons--hate, lust, jealousy, vengeance, the desire for a thrill. The executioner carefully carries out the will of the government, which is acting with a view towards what is just. He acts as a legitimate instrument of that government, just as a soldier in a just war does.

"Studies show that enacting the death penalty doesn't deter future murderers." Let's grant for sake of argument that it doesn't. This is a relevant objection only if our main or only reason for employing the death penalty is that it prevents future harm. I don't think that that is the main reason why most people are for it. If someone, say, carjacked my wife's car and killed her, I just think he ought to die. I don't care whether it would prevent future murders or not. It'd be nice if it did, but that doesn't affect the fittingness of such a cold-blooded killer being executed by the state for his crime. I say this--that he ought to die--not in the grip of the searing pain of losing a spouse, but in a sober and reasonable state. I'd say the same about any such killing. Indeed, were I to become a cold-blooded killer, I think I would deserve to die.

"But we know that all killing is wrong. People are God's creatures." Sorry, but it is not a reasonable position to hold that all killing of humans is wrong. If some murderous thugs invaded your home, and were going to kill your children, you not only are permitted to use lethal violence, it seems that in some situations you'd be obligated to kill, to protect the innocent. "But I'd shoot 'em in the knee. Or just call 911." Sure, in some cases, that'd be the best policy. But there would be other scenarios where those responses would be impossible or unreasonable, and in some of those, the only reasonable and moral response would be to kill. That shows that it's false that all killing is morally wrong. Thus, no argument against the death penalty should rely on the claim that all killing is morally wrong. As to people being God's creatures, maybe you should read what you (the religious objector) hold to be God's book. According to it, God personally endorsed death penalty policies, at least for ancient Israel. If that's so, then such policies can't be morally wrong (a perfectly good being can't and won't endorse a policy which is morally wrong), although one might object to them on practical grounds.

"OK, I'll let go of the God-talk. I just think it's barbarous for the government to be involved in killing. I don't really want to go back to that ancient eye for an eye stuff." Some death penalty procedures surely are barbarous, but others, to most people, don't seem so. Now the "eye for an eye" comment raises an interesting point. I believe the point of that part of the Mosiac law was to prevent out of proportion penalties--where the aggressor would be punished with something much worse than he inflicted (e.g. a hand cut off for stealing a pear). The idea is that the criminal should lose at most what he took from the victim, not that he should suffer at least that much, or exactly as much. I think The Objectivist is mistaken in holding that if we endorse the death penalty for killers, then we'll also have to torture those killers who torture their victims. The killer should lose his own life. Justice doesn't also demand that the state also inflict on the killer the same sorts of horrors he inflicted on his victim(s).

"But killing people costs so darned much. And the benefits, such as peace of mind for the victims' families or various other members of the public, aren't worth that cost." This sounds like an argument for reforming our current system--keeping it fair while reducing the costs, probably by speeding up the appeals processes. It's hard to put a price on justice, and the better course seems to be to keep the justice, and reduce wasteful factors that run up costs.


The Constructivist said...

Hey guys, surprised you didn't take on directly the human error arguments against the death penalty, perhaps the strongest libertarian argument against the ultimate penalty (and the only irrevocable one) being in the government's hands. Check out The Innocence Project for more on this.

Also, what do you make of the racial disparities in death sentencing? Check out The Sentencing Project for more on this.

For more on the American prison system (#1 in the world, baby!), check out this issue of Workplace that I edited a while back.

This is TC, btw--new blogger isn't allowing me to post comments under my pen name!

The Constructivist said...

Next post on the execution of Saddam Hussein, right?

BTW, you all may be interested in the debates on religion going on over at Berube's place and Dean's place and Singh's place.

The Objectivist said...

Dear C:
I wonder what you think the impact of mistaken sentences is on lengthy imprisonment cases?

The Constructivist said...

O, I think this is a problem, but one that has a remedy (which ought to include reparations of some sort, IMHO, as inadequate as they might be), whereas I can't think of a remedy for the death penalty that The Theist wouldn't enjoy your acknowledging....