An Unusual Defense of the Death Penalty

The death penalty has been in the news lately because of the American Law Institute’s disavowal of the very influential framework it created for applying the death penalty in 1962. Much of the concern of death penalty critics is based on the grave harm of executing the falsely convicted. I offer one possible defense of the death penalty that claims that maintaining the death penalty is actually better for those falsely convicted of first-degree murder:

Premise 1: After a criminal is convicted of first-degree murder with a punishment of the death penalty (DP), more attention and legal help* is offered to that criminal than when there is the alternative punishment of life imprisonment.

*There are far more legal charities and resources (per-capita) dedicated to helping death penalty convicts  appeal then there are for those punished to life in person.

Premise 2: With more attention and legal help comes a greater likelihood of exoneration, particularly if that criminal is falsely convicted.
Put in equation form: Pr (exoneration with DP) > Pr (exoneration with life imprisonment).

Premise 3: The alternative to DP is life in prison.

Premise 4:  If you are an alleged murderer, then it is better to get convicted with DP as punishment and be subsequently exonerated than it is to get sentenced to life in prison without being exonerated.

Subsidiary Conclusion: For the population of those falsely imprisoned on a first-degree murder conviction: (Harm of Execution x Pr [execution]) + (Harm of DP Conviction followed by Exoneration x [1 – Pr(execution)]) < (Harm of Life Imprisonment x [1- Pr (exoneration)]) +  (Harm of Life Imprisonment followed by exoneration x [Pr(exoneration)])

Subsidiary Conclusion in English: The expected harm to those falsely convicted with a punishment of death is less than the expected harm to those falsely convicted with a punishment of life in prison.

Conclusion: The death penalty is desirable because—on balance—it leads to a better outcome for false convicts than life imprisonment.

Thoughts?

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9 responses to this post.

  1. Josh, You have ommitted the overriding premise – that there even BE a death penalty in the first place. Without one, the rest of your deductions are meaningless. Secondly, challenging and appealing the death penalty is notoriously difficult and the assistance you speak of is actually scant and ill-funded. I accept that it is harder for prisoners facing LWoP, hence the work of Innocence Project (for example) tending to focus on lifers, who would otherwise receive little attention. However the appeals process is restrictive and slow and there are many justices (cf Scalia) who maintain that ‘actual innocence’ is irrelevant once a person has been convicted in a ‘full and fair’ trial, irrespective of later exonerating evidence coming to light. So it can be a bitter and thankless battle. The element missing from your premise is SCALE, i.e. the magnitude of receiving the death penalty (ie the impact) vs the (VERY) low probability of gaining a reprieve. Thirdly, the entire machinery of maintaining and administering the death penalty is acknowledged to be very expensive. By removing the death penalty in toto one of the financial benefits (as well as providing better victim support and crime prevention and detection resources for police) might be better resources to assist those facing life terms who need to appeal. Fourthly, have you ever thought that simply being sentenced to death and undergoing imprisonment with the expectation of execution constitutes cruel and unusal punishment in its own right? Not just for the condemned person, but for their family too? And how much is this magnified for an innocent person? Being held in a death warehouse with time running out does not sound like a favourable option to me under any circumstances.

    While each of your premises sounds safe on the surface, they are based on the hypothesis that exoneration is ten-a-penny. It is not. It is hard-fought and precious. Just ask Troy Davis or his sister Martina Correia. Or any of the beneficiaries of ‘Resurrection after Exoneration’, whose exonerees spent over 20 years apiece on Death Row.

    The only real solution is for the Death Penalty to stop being an option. This is the ultimate conclusion to be drawn from the ALI withdrawal of the death penalty guidelines from the Model Penal Code.

    @TheOptimismClub

    Reply

    • Posted by Josh on January 6, 2010 at 7:58 PM

      Kathy, thanks for the reply.

      1. You argue that I “have ommitted the overriding premise – that there even BE a death penalty in the first place.”

      My response: My conclusion was: “The death penalty is desirable because—on balance—it leads to a better outcome for false convicts than life imprisonment.” If there were no death penalty, all false convicts would be in the much larger first-degree murder “pool” and-even with the Innocence Project–the expected effort expended on each false convict’s case/appeal individually would go down compared to if they were still in the DP pool.

      2. You’re right that a lot depends on scale and the magnitudes we’re dealing with. I admittedly think LWoP is pretty darn bad and the difference in harm between LWoP and Exoneration is HUGE while the difference between LWoP and DP is RELATIVELY smaller by comarison. I’m sure you disagree with me, but that’s what I think.

      3. You claim, “By removing the death penalty in toto one of the financial benefits (as well as providing better victim support and crime prevention and detection resources for police) might be better resources to assist those facing life terms who need to appeal.” I don’t see why this would result. My best guess is that increased funding would go to prisons not towards the appeals process.

      4. You argue: “Fourthly, have you ever thought that simply being sentenced to death and undergoing imprisonment with the expectation of execution constitutes cruel and unusal punishment in its own right? Not just for the condemned person, but for their family too? And how much is this magnified for an innocent person?” There is certainly an argument to be made that the death penalty categorically violates the 8th amendment, especially since the SCt has already held that it violates it for juveniles and the mentally retarded, but I never claim to be making a constitutional argument or even an argument that considers all of the factors that would need to be addressed in a moral analysis of the death penalty. I’m just throwing one argument out there.

      Reply

      • Josh, thanks for the opportunity to discuss :-).

        1) “the expected effort expended on each false convict’s case/appeal individually would go down compared to if they were still in the DP pool.”
        You have no evidence for this, it is pure speculation. My view is that with the Death Penalty out of the picture, all those previously targetting their most URGENT effort to save the wrongfully convicted (both professionally and through fundraising and campaigning) would turn their attention to those in LWoP situations. I would also submit that with the expense and URGENCY surrounding the Death Penalty removed, the USA would have a chance to address penal reform and look at criminal justice and associated human rights systemically – something which is sorely needed. This also relates to your point 3 below.

        2) I take your point on the relative ‘badness’ of LwoP and DP – but it is a subjective point (on the part of each prisoner) and requires a great deal of human understanding (which no amount of logical hypothesis can emulate. One day I’ll have enough insight to write a blogpost of my own on this and scratch the surface.

        3) “I don’t see why this would result”. Well, because the State funds counsel and administration for appeal cases. Condemned convicts cost a lot of money in this respect. Without the DP, some of the previously available funding could be allocated (admittedly at the discretion of the State) to allow lifers to appeal. This may require State legislation though as the procedure for DP appeals is different from Life appeals.

        4) Granted :-). And interesting to think it through – thanks again for the opportunity. However, to me the moral, humanitarian and constitutional factors are inalienable from the entire issue and the logic is complicated hugely by the chaotic fabric of politics, power, psychology (e.g.’what is better for one falsely convicted person != what is preferred by another’), etc… so logical hypothesis of the kind you propose is impracticable.

        Reply

  2. Posted by JLA on January 6, 2010 at 4:07 PM

    I’m dubious of Premise 2. The probability of being exonerated under possibility of DP isn’t necessarily lower than the probability of being exonerated under life imprisonment. Even if more resources are allocated towards determining guilt/innocence under possibility of DP than under life imprisonment, there is a longer period of time to determine the guilt/innocence of a suspect under life imprisonment.

    Your analysis rests on the intended purpose of the legal code. If the purpose of the legal code is to minimize the harm done to innocent suspects, then your analysis may be right. But if the purpose of the legal code is to maximize the utility of everyone who falls under the jurisdiction of the legal code, then you need to consider many other factors. Just a few that come to mind are the economic costs of the DP versus life imprisonment (life imprisonment is much less costly than the DP) and the deterrent effect of the DP.

    Reply

    • Posted by Josh on January 6, 2010 at 8:02 PM

      Jason,

      Regarding Premise 2, there’s empirical support for that premise: http://www.physorg.com/news150476160.html

      And, my conclusion isn’t that all things considered, we should maintain the death penalty. It’s what I say it is, which is much more modest. I agree with you that all of the factors you mentioned and more need to be considered for a wholesale normative evaluation of the DP.

      Reply

  3. Posted by Tim on January 6, 2010 at 8:39 PM

    Josh, I was wondering about your little “on balance” qualification in your conclusion. Are enough innocents exonerated to offset the wrongful execution of others? If so, do you have empirical numbers, and/or what ratio of Exonerated Innocents to Wrongfully Executed Ones is suitable?

    Reply

    • How can even ONE wrongfully executed person be ‘offset’ by an exoneration? They do not counterbalance each other, they are both undesirable situations. This is like suggesting that something that is heinous by a factor of 10 is offset by something which is heinous by a factor of (10 minus 8).

      A more appropriate counterbalance for a false conviction would be the imprisonment of the prosecuting DA who obscured vital evidence which would have exonerated the defendant at trial. Or the negligent Defense Attorney. There are many documented examples of both.

      The whole system is madness. The justice system is ruled by political gain and fear. Factor those variables into your hypotheses.

      Reply

  4. Posted by Josh on January 6, 2010 at 9:03 PM

    Tim,

    Empirical numbers? As opposed to the non-empirical ones?

    From 1973 to 2004, 111 of 7534 of Ds sentenced to death were exonerated, 1.5%. According to Gross and O’Brien (2007), “This is a startlingly high number, considering that death sentences amount to less than one-tenth of one percent of prison sentences in the United States.” Gross and O’Brien emphasize that “with rare exception” EVERY capital sentence generates at least one post-conviction legal opinion and most capital defendants have legal representation the VAST majority of the time they are on death row.

    There is no way of knowing how many false convicts are actually on death row because we don’t know who is a false convict and who isn’t. So, I can’t–and never sought to give you a ratio either. But, I’d guess that there are enough innocents exonerated to offset given how many innocents are exonerated on death row compared to those with LWoP; and, you have to remember, the alternative to DP is life without parole which is pretty awful too. AND, 58% of those assigned to death row since 1973 haven’t even reached death, largely for the same reasons that people are being exonerated: more resources devoted to them.

    Here’s a link to the very interesting study: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=996629

    Reply

  5. Posted by Dan on January 14, 2010 at 4:13 PM

    In terms of your equation:

    (Harm of Execution x Pr [execution]) + (Harm of DP Conviction followed by Exoneration x [1 – Pr(execution)]) 0 (i.e. their is a finite and non-zero probability of execution), that term blows up and your inequality does not hold.

    In English, reduced probability of execution provided by the death penalty can never offset the fact that an innocent person may be killed.*

    *This point may be debatable, but perhaps thats a reason not to formulate such an argument with math.

    Reply

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