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A Medium-Length Post With More Than Its Share Of Parenthetical And Footnoted Asides, About Arguments Against The Death Penalty

... with a bonus Schwyzerian title.

Abiola Lapite says that, contrary to the claims of anti-death-penalty campaigners, studies have shown that execution is actually pretty good at deterring crime. But he also says that death penalty opponents shouldn't be making that argument in the first place, as their real reasons for their stance are on a moral/philosophical level*. But I don't see why it's "sophistry" to choose arguments based on what you think will connect with your audience rather than what most strongly motivates you yourself, provided the arguments are all valid ones. Indeed, it shows a kind of respect, in that you're accepting that your audience has a different viewpoint and you're trying to set up some intellectual cooperation, rather than demanding that everyone else assimilate to your core values**. (Of course, there are still pragmatic reasons to be careful of using arguments that you accept intellectually but which don't motivate you. You're less able to understand the details and the larger framing, and to argue it passionately. This is why I'm skeptical of secular environmentalists trying to use "creation care" arguments. But deterrence is such a well-understood concept in our society that I don't think these pragmatic concerns carry a great deal of weight in the death penalty case.)

Lapite makes a positive mention of concerns about making sure that the death penalty is applied fairly, since it can't be undone if you make a mistake. This is, in my experience, one of the two most common arguments made by death penalty opponents. (The other is that if it's wrong for a murderer to kill someone, then it's wrong for the government to do it too. I find this very unpersuasive -- after all, any punishment involves doing something to the criminal that you would not be allowed to go out and do to an innocent person on the street. Even the most touchy-feely rehabilitative program is something that you couldn't force non-criminals to go into.) I agree that unfairness in applying the death penalty is a serious concern. But I'm often made uncomfortable by the way it's used by most death penalty opponents (not Lapite). The unfairness argument rests on facts that are not just empirically contingent (as the deterrence argument does), but on ones that are historically/institutionally contingent. We're unlikely to make major changes in how much of a deterrent the death penalty is***, since that's a matter of human decisionmaking psychology. But the fairness of applying the death penalty is clearly within our control, through various reforms of the criminal justice process. So while the unfairness argument should certainly lead us to consider an Illinois-style temporary moratorium while the worst abuses get sorted out, it cannot support a permanent ban. Moreover, using the unfairness of the system as a reason to eliminate the death penalty is a blinkered vision in which the argument's utility for the anti-capital-punishment cause is prioritized over its real force. The real force of the fairness argument is toward reforming a system that is unfair to everyone it gets hold of, not just those accused of capital crimes. Ending the death penalty would be just a band-aid over one of the worst effects of the unfair system (and a counterproductive one at that, if Lapite is right about the strong deterrent effect of capital punishment).

In summary, the deterrence argument is a valid and useful argument for eliminating the death penalty (assuming the empirical evidence it's based on holds up). The fairness argument is a weaker argument with respect to the death penalty issue because its real force should point us in the direction of a broader justice system reform.

* Most of them, anyway -- I personally place a great deal of weight on the deterrence question, so I am willing to reconsider my stance in light of new evidence. I remain a bit skeptical of the studies that Lapite cites, however, because in the news report he links to they cite some very exact numbers as to how many homicides are prevented by each execution. That kind of specificity in social science is often an indicator that various factors have either been assumed away or filled in with unreasonably precise guesses (though of course it's possible that these assumptions bias the findings against the effectiveness of the death penalty). My preexisting judgment that the evidence did not support the death penalty came from watching a debate in college between two professors, where the anti-death-penalty professor clearly had stronger evidence, and in fact the pro-death-penalty professor much preferred to focus on non-deterrence arguments such as the intrinsic desirability of revenge and making bad people suffer.

**"Seeking an overlapping consensus," for any Rawlsians in my audience.

***Though trust in the criminal justice institutions -- which is in turn affected by their fairness -- may make some difference as it encourages people to view punishments as following from the criminal's wrongdoing rather than from the punisher's ill will.


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