So what if the death penalty deters?
Steven Goldberg
National Review, June 30, 1989 v41 n12 p42(2)
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Opponents of the death penalty have many reasons for their opposition that
innocent people may be executed, that the death penalty is 'uncivilized',-
that the state should not take lives. But what these arguments come down to
is.
DOES THE THREAT of the death penalty deter people from murderous behavior
more than the threat of imprisonment for life? We do not yet know with
anything even approaching certainty whether the death penalty does or does
not deter. The question is clearly empirical; and it is likely that
sophisticated statistical techniques will eventually permit us an answer.
Professor Isaac Ehrlich and his colleagues, utilizing his statistical
techniques, argue that there can be little doubt about the ability of the
death penalty to deter. Ehrlich concludes that each additional execution
prevents about seven or eight people from committing murder. All statistical
arguments on the death penalty are, however, excruciatingly complex. Some
critics, for example, have argued that increased likelihood of execution
leads juries to convict fewer people, thereby offsetting the deterrent
effect. If anything, the empirical evidence is that the death penalty does
deter. But this is inevitably open to dispute. As a result, firm conclusions
that the death penalty either does or does not deter are unwarranted and
usually determined by one's psychological and moral leanings.
In academic and media circles, psychological and moral resistance to the
idea of the death penalty usually leads to the assertion that it does not
deter. These people's conclusion may or may not be correct, but it does not
follow from the arguments they deploy. Since many murders result from
emotional impulse (e.g., the angry husband who kills his wife), the death
penalty could have, at best only the slightest deterrent effect, If the
death penalty deters, it is likely that it does so through society's saying
that certain acts are so unacceptable that society will kill someone who
commits them. The individual internalizes the association of the act and the
penalty throughout his life, constantly increasing his resistance to
committing the act. Note that there is no implication here that the
potential murderer consciously weighs the alternatives and decides that the
crime is worth life in prison, but not death. No serious theory of
deterrence claims that such rational calculation of punishment (as opposed
to no rational calculation, or calculation only of the probability of
getting caught) plays a role.
There is no a priori reason for assuming that this process is less relevant
to emotional acts than rational acts; most husbands, when angry, slam doors,
shout, or sulk. Neither the death penalty nor anything else deterred the
husband who did murder his wife, so the question is not what deterred the
person who did murder (nothing did), but what deterred the person who
didn't. If the death penalty deters, it is, in all likelihood, primarily
because it instills a psychological resistance to the act, not because it
offers a rational argument against committing the act at the time that the
decision is being made. In short, it is only legislators who calculate (or
at least should calculate) the deterrent effect of the death penalty.
Potential murderers simply act; the deterrent effect of the death penalty,
if there is one, acts upon them. If it acts with sufficient strength, it
prevents their becoming murderers. The legislator is the physicist studying
the forces that move particles; the potential murderers are the moving
particles.
There is no evidence that the death penalty deters. This is simply untrue.
Ehrlich's complex statistical techniques establish a real case that the
death penalty deters. But here let us assume, for argument's sake, that
there was no such evidence. The more important point is that there is a
crucial difference between there being no evidence that two things are
correlated and there being evidence that two things are not correlated. The
latter means that we have good evidence that the two things are not related;
the former means simply that we have no evidence on either side of the case.
Now, it is quite true that we must have some sort of evidence in order to
even entertain the idea that two things are related. Our reason for not
believing that tall Italian men are smarter than short Italian men is not
simply that we have no direct evidence, but also because we have no informal
evidence suggesting that this is true-and so we do not bother to even
investigate the possibility. It is the lack of relevant informal evidence
that permits us to ignore the difference between not having evidence that
the hypothesis is true and having evidence that the hypothesis is not true.
But, in the case of penalties, we have an enormous amount of both informal
and formal evidence-from everyday experience of socializing children and
limiting adult behavior and from such "experiments" as increasing the fees
for parking violations-that, as a general rule, the greater a punishment,
the fewer people will behave in the punished way. Thus, it is perfectly
reasonable to expect that the death penalty would have a more dissuasive
effect than would life imprisonment.
FINALLY, NEARLY EVERY popular article and a good many academic articles
invoke the experience of the British with public hanging of pickpockets as
proof that the death penalty does not deter. The argument sees the fact that
pickpocketing continued long after the introduction of (public) hanging as
demonstrating that the death penalty has no deterrent effect. It
demonstrates no such thing, of course; at best, it demonstrates that not
every pickpocket was dissuaded, a fact no one would doubt. Even if it could
be shown that all practicing pickpockets continued to pick pockets at the
same rate, this would still not address the more important question of
whether some people who had not yet become pickpockets were dissuaded from
doing so by the death penalty. I have no idea whether they were, but neither
do those who deny the death penalty's effect.
The death penalty will inevitably be imposed on some innocent people. This
is, of course, true. But it is also true that, if the death penalty deters,
the number of innocent people whose lives are saved will, in all likelihood,
dwarf the number of people executed-and a fortiori, the number wrongfully
executed. Moreover, even the opponent of the death penalty who emphasizes
wrongful executions is willing to sacrifice thousands of lives each year for
the social advantages of motor vehicles. Realizing this, the opponent
differentiates between the death penalty and the use of motor vehicles on
the grounds that:
In the case of the death penalty, it is the state that takes a life. This
seems to be an argument but is, in fact, merely a restatement of the basic
ad-hoc moral objection to the death penalty. Therefore, it is fair to point
out that those basing their opposition to the death penalty on the fact that
it is the state that takes a life are, if the death penalty deters,
maintaining their belief by sacrificing the (innocent) people who will be
murdered because the death penalty is not invoked.
The death penalty exchanges "real lives" (those of the executed) for
"statistical lives" (those of the people who will not if the death penalty
deters and is invoked, be murdered). This argument is essentially a
sentimental shrinking from reality. But even if one grants this dubious
distinction, this defense is available only to the pure pacifist. The most
justified military action makes exactly this exchange when it sacrifices
many of society's young men in order to avoid a greater loss of life.
If we do not know whether the death penalty deters, we should not use it. As
we have seen, if the death penalty deters, it deters the murder of people
who are, in addition to being innocent, in all likelihood more numerous than
the murderers who are executed. Thus, if society does invoke the death
penalty on the assumption that the death penalty deters and is incorrect in
this assumption, it unnecessarily accepts the deaths of a relatively small
number of (nearly always guilty) individuals. On the other hand, if society
refuses to invoke the death penalty on the assumption that the death penalty
does not deter and is incorrect in this assumption, then it unnecessarily
accepts the deaths of a relatively large number of innocent people.
Consideration of this casts doubt on the intuitively plausible claim that,
for as long as it is not known whether the death penalty deters, it should
not be used. Supporters of the death penalty might turn this argument on its
head, viz.: if we do not know for certain that the death penalty does not
deter, then we are obliged to use it to save an unknown number of innocent
lives.
The death penalty is "uncivilized." If the death penalty deters, then, by
definition, it results in a society in which there are fewer murders than
there would be if the death penalty were not invoked. The opponent of the
death penalty can, of course, render this fact irrelevant and immunize his
argument by detaching it from deterrence altogether; he can assert that the
death penalty is wrong even if it deters. He can, in other words, see the
death penalty as analogous to torture for theft: the threat of torture would
no doubt deter some people from theft, but would still be unjustified. This
is what is implied in the rejection of the death penalty on the grounds that
it is "uncivilized" or that it "increases the climate of violence."
Ultimately, these defenses of opposition are as invulnerable to refutation
as they are incapable of persuading anyone who does not already accept their
assumption that the deterrence of murders would not justify the use of the
death penalty.
One might ask, however, what, precisely, are the definitions of
"civilization" that see as "more civilized" a society in which more
(innocent) people are murdered than would be the case if the society did not
refuse to use the death penalty. Indeed, one might ask the opponent of the
death penalty just how many innocent people he is willing to sacrifice to
avoid executing the guilty.
It is those who oppose the death penalty who act out of humane motives.
Motivation is irrelevant to the correctness of an empirical claim. However,
since nearly every article on the subject accords to the opponent of the
death penalty the right to claim a greater humanity (a right the opponent
invokes with alacrity), it is worth noting there are alternative views of
the opponent's motivation.
One such view is that the opponent's opposition flows not from feelings of
humanity, but from the fact that the opponent can picture the murderer being
executed, while he cannot picture the statistical group of innocent people
who will be murdered if the death penalty deters but is not employed. The
picture of the execution is capable, as the murder of the statistically
expected victims is not, of eliciting guilt and fear of aggression with
which the opponent cannot deal. He rationalizes his avoidance of these with
feelings of humanity which bolster self-esteem and avoid awareness of his
true motivation.
It is every bit as reasonable to see this as the opponent's motivation as it
is to accept that his opposition flows from his self-proclaimed greater
humanity. Like opponents of the death penalty, I too hope that the death
penalty does not deter. If this proves to be the case, we will avoid the
terrible choice that deterrence forces upon us. Unlike the opponents of the
death penalty, however, I do not fool myself into thinking that this hope
speaks well of one's character. After all, it is a hope that is willing to
sacrifice the possibility of saving innocent people in order to avoid
personal psychological pain. This doesn't count as altruism where I come
from.
-----Original Message-----
From: DIG alfred webre <[EMAIL PROTECTED]>
To: [EMAIL PROTECTED] <[EMAIL PROTECTED]>
Date: Thursday, August 10, 2000 7:08 PM
Subject: [CTRL] NEWS: USA: The USA's hour of shame
In a message dated 00-08-10 12:48:17 EDT, you write:
<<
* News Release Issued by the International Secretariat of Amnesty
International *
10 August 2000
AI Index AMR 51/127/2000
News Service Nr. 154
The USA's hour of shame
The US death penalty continues to be one of the world's human rights
scandals, Amnesty International said today condemning the two executions
carried out in Texas yesterday.
"Texas is at the heart of that scandal," the organization continued,
pointing to the fact that Texas now accounts for 28 of the 58 executions
carried out in the USA this year, and 227 of the 656 since the USA
resumed judicial killing in 1977.
Brian Roberson and Oliver Cruz were killed by lethal injection within an
hour of each other despite serious concerns relating to racial
discrimination and mental impairment, two issues that mark many capital
cases in the USA.
"US contempt for international standards of justice and decency has once
again been on display for the world to see," Amnesty International said.
The organization also refutes Governor George W. Bush's reported
contention that Texas does not execute the mentally retarded, citing the
examples of Terry Washington and Charles Boyd -- put to death in 1997
and 1999 -- two of the 140 men and women executed since Governor Bush
took office in January 1995.
"The flawed nature of Texas justice was further exposed in the cases of
Washington and Boyd as the juries that sentenced them to death were
never told of the two men's mental impairment," Amnesty International
said.
Governor Bush did not support a bill to ban the execution of the
mentally retarded which failed to pass the Texas legislature in 1999. He
also vetoed a bill in 1999 which sought to raise the standard of legal
representation for low-income defendants.
Background
Brian Roberson, black, was sentenced to death for the 1986 killing of an
elderly white couple in Dallas County. The prosecutor at his trial
systematically removed African Americans from the jury pool, indicating
that they were not educated enough to sit on a jury. The prosecutor had
been trained at a time when such training in Dallas County routinely
used a manual encouraging new prosecutors to remove "minority races",
"Jews", and people with "physical afflictions" during jury selection
because they "almost always empathize with the defendant". A 1986 study
found that in the 15 capital murder cases tried in the county between
1980 and 1986, 91 per cent of African American jurors were removed.
At the trial of Oliver Cruz, a Latino accused of the rape and murder of
Kelly Donovan, white, the prosecutor argued for execution on the grounds
that Cruz's learning disability made him more of a threat to society.
International standards oppose the death penalty for the mentally
impaired. In yet another blatant example of the lottery of US capital
justice, Cruz's white co-defendant, charged with the same murder,
received a prison term in exchange for testimony against Cruz.
Studies have repeatedly shown that the US capital justice system places
a higher value on white life. Over 80 per cent of the more than 650
people executed in the USA since 1977 were convicted of crimes involving
white victims.
ENDS.../
Amnesty International, International Secretariat, 1 Easton Street,
WC1X 8DJ, London, United Kingdom
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