Sunday, July 13, 2008


I'm reading Politics, by Hendrik Herzberg, a columnist for the New Yorker, and formerly the New Republic. Herzberg may appropriately be called "liberal," as distinct from "left wing," which means in part that he tends to make balanced arguments, even when they do not conform to an ideological position. Sometimes this plays him for a bit of a patsy, since he seems to have thought that Bush and company behaved well in the few months after 9/11, something that no left winger would concede, and history suggests that the knee jerk leftists may have had a point.

But I want to examine Herzberg's essays about capital punishment here. His liberal moderation forbids him from calling it "state sanctioned murder," and he notes that this would be similar to calling incarceration "state sanctioned kidnapping." (The actual analogous crime is "false imprisonment," however; make of that what you will).

Then there are the usual arguments about accidentally executing the wrong man, and how capital punishment actually demeans us, the rest of society, which is true, but only from the liberal perspective. Conservatives and right-wing ideologues actually glory in that demeaning; it's part of their vision of how society should operate.

But there is an argument that Herzberg doesn't make that I heard once from a capital punishment opponent whose name escapes me, and it is a much more powerful argument against that barbaric practice. That capital punishment is capricious is a feature, not a bug, in this view, and I find it persuasive.

We see the mechanism displayed in popular culture repeatedly, in the procedural television shows that have become so prevalent, from all the Law and Order flavors to the various CSI clones. Somebody dies and the interrogating authority figure brings up the death penalty as a threat, to shake loose information, or perhaps to force a plea bargain from the suspect. Of course in these shows the accused "perps" are almost always guilty, so it's all just part of the tools of the trade.

But in real life, the accused are frequently not guilty, at least not of the crime for which they are accused, and therein lies the problem. Because the threat of the death penalty can make an innocent man cop a lesser plea, as death is permanent, while the lesser crime allows at least some future.

Moreover, sometimes prosecutors know this, they know that the accused hasn't done this particular crime, but they are sure that he has done something for which he deserves punishment. Thus does the death penalty make a mockery of the idea of the rule of law, substituting the opinion of a D.A. for that of a judge and jury. It is a system that is made for abuse, and abused it certainly is.


black dog barking said...

Here in Nebraska the prison starts a rigorously controlled process two weeks before an execution that tests and practices every detail of the execution. By the time the real event arrives everyone involved is well versed in the schedule and flow of events. This is, of course, responsible behavior by the institution but it is kind of creepy in that premeditation in killing is one of the factors that makes a crime a capital offense.

dudleysharp said...

The Death Penalty: More Protection for Innocents
Dudley Sharp, Justice Matters, contact info below

Often, the death penalty dialogue gravitates to the subject of innocents at risk of execution. Seldom is a more common problem reviewed. That is, how innocents are more at risk without the death penalty.
Living murderers, in prison, after release or escape or after our failures to incarcerate them, are much more likely to harm and murder, again, than are executed murderers.
Although this is, obviously a truism, it is surprising how often folks overlook the enhanced incapacitation benefits of the death penalty over incarceration.
No knowledgeable and honest party questions that the death penalty has the most extensive due process protections in US criminal law.

Therefore, actual innocents are more likely to be sentenced to life imprisonment and more likely to die in prison serving under that sentence, that it is that an actual innocent will be executed.
That is. logically, conclusive.
16 recent studies, inclusive of their defenses,  find for death penalty deterrence.
A surprise? No.

Life is preferred over death. Death is feared more than life.
Some believe that all studies with contrary findings negate those 16 studies. They don’t. Studies which don’t find for deterrence don’t say no one is deterred, but that they couldn’t measure those deterred.
What prospect of a negative outcome doesn’t deter some? There isn’t one . . . although committed anti death penalty folk may say the death penalty is the only one.
However, the premier anti death penalty scholar accepts it as a given that the death penalty is a deterrent, but does not believe it to be a greater deterrent than a life sentence. Yet, the evidence is  compelling and un refuted  that death is feared more than life.

“This evidence greatly unsettles moral objections to the death penalty, because it suggests that a refusal to impose that penalty condemns numerous innocent people to death.” (1)
” . . . a serious commitment to the sanctity of human life may well compel, rather than forbid, (capital) punishment.” (1)

“Recent evidence suggests that capital punishment may have a significant deterrent effect, preventing as many as eighteen or more murders for each execution.” (1)
Some death penalty opponents argue against death penalty deterrence, stating that it’s a harsher penalty to be locked up without any possibility of getting out.
Reality paints a very different picture.
What percentage of capital murderers seek a plea bargain to a death sentence? Zero or close to it. They prefer long term imprisonment.
What percentage of convicted capital murderers argue for execution in the penalty phase of their capital trial? Zero or close to it. They prefer long term imprisonment.
What percentage of death row inmates waive their appeals and speed up the execution process? Nearly zero. They prefer long term imprisonment.
This is not, even remotely, in dispute.
Life is preferred over death. Death is feared more than life.
Furthermore, history tells us that “lifers” have many ways to get out: Pardon, commutation, escape, clerical error, change in the law, etc.

In choosing to end the death penalty, or in choosing not implement it, some have chosen to spare murderers at the cost of sacrificing more innocent lives.
Furthermore, possibly we have sentenced 20-25 actually innocent people to death since 1973, or 0.3% of those so sentenced. Those have all been released upon post conviction review. The anti death penalty claims, that the numbers are significantly higher, are a fraud, easily discoverable by fact checking.

6 inmates have been released from death row because of DNA evidence.  An additional 9 were released from prison, because of DNA exclusion, who had previously been sentenced to death.

The innocents deception of death penalty opponents has been getting exposure for many years. Even the behemoth of anti death penalty newspapers — The New York Times — has recognized that deception.

“To be sure, 30 or 40 categorically innocent people have been released from death row . . . “. ‘ (2) This when death penalty opponents were claiming the release of 119 “innocents” from death row. Death penalty opponents never required actual innocence in order for cases to be added to their “exonerated” or “innocents” list. They simply invented their own definitions for exonerated and innocent and deceptively shoe horned large numbers of inmates into those definitions - something easily discovered with fact checking.

There is no proof of an innocent executed in the US, at least since 1900.

If we accept that the best predictor of future performance is past performance, we can reasonable conclude that the DNA cases will be excluded prior to trial, and that for the next 8000 death sentences, that we will experience a 99.8% accuracy rate in actual guilt convictions. This improved accuracy rate does not include the many additional safeguards that have been added to the system, over and above DNA testing.

Of all the government programs in the world, that put innocents at risk, is there one with a safer record and with greater protections than the US death penalty?
Full report -  All Innocence Issues: The Death Penalty, upon request.

Full report - The Death Penalty as a Deterrent, upon request
(1) From the Executive Summary of
Is Capital Punishment Morally Required? The Relevance of Life-Life Tradeoffs, March 2005
Prof. Cass R. Sunstein,   Cass_Sunstein(AT)
 Prof. Adrian Vermeule ,   avermeule(AT)
Full report 
(2) “The Death of Innocents’: A Reasonable Doubt”,
New York Times Book Review, p 29, 1/23/05, Adam Liptak,
national legal correspondent for The NY Times

Dudley Sharp, Justice Matters
e-mail,  713-622-5491,
Houston, Texas
Mr. Sharp has appeared on ABC, BBC, CBS, CNN, C-SPAN, FOX, NBC, NPR, PBS , VOA and many other TV and radio networks, on such programs as Nightline, The News Hour with Jim Lehrer, The O’Reilly Factor, etc., has been quoted in newspapers throughout the world and is a published author.
A former opponent of capital punishment, he has written and granted interviews about, testified on and debated the subject of the death penalty, extensively and internationally.
Pro death penalty sites 


www(dot) (Sweden)

Permission for distribution of this document, in whole or in part,  is approved with proper attribution.

J Thomas said...

That's an important argument.

People who argue about death penalty are usually thinking in terms of ethical absolutes. Like, they worry about innocent people getting killed, but that goes with the territory -- it's seldom human beings do *anything* at better than 95% or possibly 99% efficiency. Of course we can expect 1% or more of convicted criminals to be innocent of the crimes they were convicted for, particularly including criminals with life sentences or death sentences.

And when it's only a small number of people who get executed then the actual executions aren't really a big deal either way. People talk about it deterring others, but the difference between prison for life and prison for a long time with a death sentence at the end is not large.

But there could be a whole lot of death-sentence threats and plea-bargains and such, enough to be a big deal even when the number of actual executions is not.

There's a story that a US president -- I think it was Calvin Coolidge -- jokingly suggested the US prosident be allowed to have one person a year killed without requiring any justification at all. A reporter asked him who he wanted to kill. He said something to the effect that he hadn't chosen any one particular person but there were a couple dozen senators he wanted to tell were candidates.

James Killus said...

I find it interesting that dudleysharp prefers to answers arguments that I did not make to the argument that I did make. Interesting, but not surprising.

If all you're concerned about is protecting innocent lives, you'd do better to work on better automobile safety standards or better health care for everyone. But the death penalty isn't about saving lives; it's about vengeance, and some illusion of social control.

dudleysharp said...

Mr. Killus:

I, specifically, responded to your comment:

"Then there are the usual arguments about accidentally executing the wrong man, "

In fact, innocents are more at risk without the death penalty.

It was you that neglected your own point, not me.

dudleysharp said...

Far from demeaning, the death penalty provides a just and apropriate sanction for our most heinous criminals.

Here is a good essay, regarding holding the murderer morally responsible.

Arnaud said...
This comment has been removed by the author.
Arnaud said...

If the death penalty is such a deterrent, Dudley Sharp, how do you explain this?

As for your assertion that "living murderers, in prison, after release or escape or after our failures to incarcerate them, are much more likely to harm and murder, again, than are executed murderers" I have to call it both bullshit and bad logic.

1 - Most murders are one-off events, not the cold-blooded premeditated assassinations you see on TV, and most killers are unlikely to kill again once their term is served.

2 - Using that logic we could advocate the death penalty for any anti-social behaviour, from murder to jaywalking. Dead people are, after all, unlikely to do anything that matters again. But, you know what? so are people in jail...

dudleysharp said...

Arnaud thank you for your comments.

If you look at all countries and their murder rates and death penalty use, you would find that some countries without the death penalty and some with have high and low murder rates. Look at Japan, The US, Saudi Arabia, Mexico, South Farica, etc., or US states, such as South and North Dakota, Louisiana. Delaware, Michigan, Washington DC., etc.

Please review:

I think most of us know that all prospects for negative outcomes deter some, without exception.

Arnaud writes: "As for your assertion that "living murderers, in prison, after release or escape or after our failures to incarcerate them, are much more likely to harm and murder, again, than are executed murderers" I have to call it both bullshit and bad logic."

REPLY: For you, it may be. But it is logically absolute, as most readers will recognize. It is a truism.

Arnaud writes: "2 - Using that logic we could advocate the death penalty for any anti-social behaviour, from murder to jaywalking. Dead people are, after all, unlikely to do anything that matters again."

I agree. But I only advocate the death penalty for murders. I think it a just and deserved sanction for that crime. That is primary. Secondarily, innocents are more at risk without the death penalty.

The comment was made because of the specific post I was responding to and in that context.

J Thomas said...

We've gotten some consistent results from behavioral psychology.

If you want a deterrent to be effective, it works a lot better when it's immediate and not delayed.

So if, every time you killed somebody, a great big guy showed up within 3 minutes and took $5000 from you, and if you didn't have $5000 he beat you up, breaking your jaw and a few ribs, that would be a pretty effective deterrent. Hardly anybody would kill a third time, if they saw any way to avoid it.

But we can't do that. First we have to catch probable murderers, and then put them through a trial that could take a year counting the waiting and the trialing, and then let them appeal, and what with one thing and another it could be 20 years before they get killed. Pretty much ineffective.

Most people don't kill people because their mothers taught them it just isn't the thing to do. We need some way to deal with people whose mamas didn't teach them that. I'm not sure what's best.

Every now and then somebody who's arguing about capital punishment says

"We need capital punishment because it's what keeps people like me from murder. If I lived in a state that didn't have capital punishment I'd go out and kill as many people as I wanted to, because I'd know the worst that could happen was the government would put me in a nice comfy jail with a bunch of other murderers and we could just be happy together for the rest of our lives. But when I think about killing somebody and then i rememember I could die for it, then I get scared and I quit."

When I hear that kind of thing I feel like this is not somebody I want to argue politics with. I want to slowly back away and try to make sure I never meet them again. I wouldn't particularly mind if they get locked up in a prison with a bunch of murderers, for as long as they last.

Arnaud said...

dudleysharp: "If you look at all countries and their murder rates and death penalty use, you would find that some countries without the death penalty and some with have high and low murder rates."

The best you can do is prove that there is no correlation between the death penalty and murder rates and you call that an argument for the death penalty?

Please do not use the word "logic", you argue like a child. For your information, repeating your previous assertion with a slightly different wording is not the same as answering my objections.

So no, it is not self evident (the usual phrase used by people who cannot bring proof to support their opinion). This is why I linked to that table, the death penalty does not prevent murder. Actually there is an argument to be made to say that it actively encourages it, by lowering the value placed on human lives.

As for the countries in that table, they were chosen because they are western, developed, industrialized countries. Feel free to compare the US to Saudi Arabia or China and think that you are great, most US citizens I know have greater ambitions for their country though...

dudleysharp said...


I am sorry you didn't uinderstand my post.

You have no idea how to measure deterrence.

that is why I posted this essay.

please read it.

Again, of course, my assertion is a truism and you cannot contradict it.

dudleysharp said...

correct link

James Killus said...

The trick is to always turn the argument to the terms that you wish to argue. I have nothing to say about the issue of deterence, nor the morality of state sanctioned killing. My argument was about handing a selective tool for abuse of the criminal justice system to prosecutors, and that's the only area of discussion that I will entertain.

In other news, the trip has gone well so far.

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