Debates Surrounding the Death Penalty

We looked at what really amounted to just a bald statement of support for the death penalty. And that came by way of Kant, who presented but didn't exactly defend this principle of equality, which we might paraphrase as the eye for an eye principle. Then what we looked at is a response to and critique of that principle from Nathanson. And then finally Vandenhag, which was a defense of capital punishment. against several of its most common objections. So what we're going to be doing this week is basically picking up where we left off with that topic. We're going to be discussing a pair of papers, one by Reiman and one by Liebman and Liebman's colleagues. We'll start with Reiman. So his target, and what I mean by that is what it is that he's attacking, is straightforward. It's just deterrence-based arguments for capital punishment. So you'll recall what these are, I hope. And Ryman thinks that these deterrence-based arguments are no good. And so he's not going to say anything about retributivist-based arguments. He just wants to show that deterrence-based arguments won't fit the bill, they won't do the job. And he thinks that the empirical evidence that the death penalty does deter people from committing murder, that that evidence is inconclusive. It can't be used in support of capital punishment on grounds of deterrence because that evidence just is no good, right? It doesn't say conclusively that the death penalty deters. And then the second and more important point he makes is that he thinks that it can be shown on purely philosophical grounds that these claims of deterrence are unsupportive. So notice what's going on here. These are two very different kinds of things that you might do, and therefore two very different kinds of things he does do in the paper. One would be to say, look, these are deterrence-based arguments don't work because we just don't have any evidence, any empirical evidence, we don't have any data, that capital punishment deters. Now if capital punishment doesn't deter people from committing crimes, then deterrence-based arguments are no good, right? An entirely different kind of thing we might do is argue against these deterrence-based arguments on what I referred to here as purely philosophical grounds, and that's just to be distinguished from empirical grounds. So instead of saying the data just doesn't support this idea that capital punishment deters, what we could do, what Ryman does do, second, is to say, look, I'm just going to show that it doesn't make any sense anyway. Just if you think about it logically, philosophically, we shouldn't have even been tempted by or attracted to this idea that capital punishment deters people from committing crimes. Those are the two different kinds of things he does in his overarching aim of establishing that deterrence-based arguments are no good. And one thing I wanted to say before we get going very much further is that this lecture is going to be quite a bit shorter than usual, at least so I hope. That's because Although there are some tricky points in the Ryman paper, the Liebman paper is really quite a bit more straightforward than most of what we do in this class. And so I think that just, you know, merely reading the paper by Liebman and his colleagues should be enough for you to get a good solid grasp of it without me having to lecture on it very much at all. I will do that toward the end of this lecture, but we're going to start, we're going to devote most of our time to Ryman. So let's pick back up with that. And he's got four different observations that support this idea. and he just labels them 1 through 4 in his paper. I'm going to focus in this lecture on just two of those four. You're going to want to make sure, though, that you know what all four of them are, but the two that I'm going to focus on here are the ones that I take to be the most interesting, and that's why I want to devote our time to them. They also happen to be the two that are the trickiest to understand, so hopefully this will help you out. Okay, one of them is just this. So if you remember Vandenhag, we... read most recently, people like that, people who support these deterrence-based arguments, they claim that the death penalty deters to a greater extent than life imprisonment, and that that's a reason for supporting capital punishment. So this should be familiar, but just think about what's going on here. If you're making a deterrence-based argument for capital punishment, you're saying we should have capital punishment. Why? Because it deters Not just that it deters, but it deters more than life imprisonment would, right? Because if it didn't deter more than life imprisonment, then that would be no reason for supporting capital punishment. In other words, if life in prison deters just as effectively as the death penalty does, then that in itself, you know, the fact that the death penalty might deter in some way, isn't going to be enough to get you the conclusion that we should have the death penalty, because life in prison would do just as well. So if that's true, that they deter equally well, then that's a problem for these people who like deterrence-based arguments. What we're doing here is just noting that people who do like those arguments are committed to the idea that the death penalty deters to a greater extent than life in prison. Okay, and if you'll recall, Vandenhag's reason for thinking that was that people fear the death penalty more than they do life in prison. So why does he think that the death penalty deters to a greater extent than life imprisonment? Well, just because people are more afraid of it. than they are spending their life in prison. But what Ryman's gonna do is question this connection between fear and deterrence. So he says, and this is a direct quote from the paper, he says, from the fact that one penalty is more feared than another, it does not follow that the more feared penalty will deter more than the less feared penalty. Unless we know that the less feared penalty is not fearful enough to deter everyone who can be deterred, and this is just what we don't know with regard to the death penalty. So there's a lot going on here. I feel like if you have a perfect grasp of what he's saying in this passage, you're like 90% of the way there. This passage that I've isolated here, in other words, is of critical importance. So I want to really try to pick it apart. What I want to do first is just back up to this last bullet. where I said that what Ryman's doing is questioning the connection between fear and deterrence. So people like Vandenhag claim that the reason we can know that the death penalty does deter and that it does so better than life in prison is that people are more afraid of the death penalty than they are of spending their life in prison. Ryman is saying, okay, I'll grant you... that I'm more afraid of dying than spending my life in prison. He's not questioning that. He's saying it can be the case that people are more afraid or more fearful of dying than they are of spending their life in prison. And yet it won't necessarily follow that dying, by way of capital punishment, is more of a deterrent than spending one's life in prison. So let's take another look at this. He says, from the fact that one penalty is more feared than another, so dying in the electric chair, for instance, is more feared, we can assume, than spending one's life in prison. From that fact alone, it doesn't follow that the more feared penalty, dying in the electric chair, will deter more than the less feared penalty, spending one's life in prison, unless we also know that the less feared penalty, spending one's life in prison, is not fearful enough to deter everyone who can be deterred. And then he adds, you know, and that's just what we don't know with regard to the death penalty. So what's going on here is he's saying, look, it's possible. I mean, we could take the set of people who are capable of being deterred from committing murder. Because, you know, there's some people who just can't be deterred. They're going to do it regardless of what the penalty is. But forget them because it's irrelevant to the, you know, if anything that, you know, you might think that that. hurts the case for capital punishments instead of helping the case for it. So we'll set that aside. There's a big group of people who can be deterred from committing murder. Now what Ryman's saying is that for all we know, all of those people who are capable of being deterred, okay, are capable of being deterred by life in prison. So Unless it's the case that there are some people who aren't deterred by life in prison, but are deterred by capital punishment, then that won't be a reason for caring about the fact that capital punishment is more feared than life imprisonment. So maybe pause and rewind that. I'm going to talk a little bit more about it here, though. So, as I say here, you might actually read that passage more than once in addition to listening to what I have to say about it more than once. What he goes on to say immediately after that in the text does help to clarify things a little bit. So he says, though I fear the death penalty more than life in prison, so he's granting that, you know, I do fear that more than I do life imprisonment. Even so, I can't think of any act that the death penalty would deter me from, that an equal likelihood of spending my life in prison wouldn't deter me from as well. So what he's saying is, look, you might think that the only way to deter murderers is to implement the death penalty, but if I wasn't afraid of spending my life in prison, I'm not gonna, or if I wasn't deterred by the fact that I was gonna spend my life in prison, I'm not going to be deterred by the possibility that I'm going to get the death penalty either. So sort of put yourself in his shoes here. He's saying, at least, you know, and I think plausibly, I mean, I feel the same way, but I'm wondering whether you do. So think about this. Just everywhere, you know, when you're reading through this, just think about it from your perspective. So is it true that you can't think of any act that the death penalty would deter you from? that you wouldn't already be deterred by, given the possibility of spending your life in prison. I think there is some strong intuitive plausibility to this idea. The idea is just that, yeah, the death penalty might deter. If we set aside these worries that Reiman does have about whether it actually does deter or not, given the empirical evidence, let's just assume that it does deter. The question then is, is it going to deter anybody who wouldn't already be deterred successfully by the possibility of spending their life in prison. Okay, and so the second of the four replies that Ryman gives to deterrence-based arguments that I want to talk about in this lecture is this. So he just says, look, we can just forget all the other problems with Vandenhag's style deterrence arguments and just take them at his word and see what happens. So what he's saying here is, suppose that capital punishment does deter. Suppose that it deters more effectively than life in prison, and suppose that we think that's a reason for having the death penalty, the fact that it will deter. He's saying let's see what happens, let's see what follows if we like that kind of reasoning. So again Vandenhag thinks that we should follow common sense and hold it a more feared penalty is more likely to deter, and so we have evidence otherwise. And then in turn, that would support capital punishment, at least if we care about deterrence. But Ryman is pointing out that if Vanden Haag is correct about all of this, it has a rather unpleasant and unexpected result that even Vanden Haag himself should not be okay with. Okay, so in order to see this, first just assume that Vanden Haag is correct, that a Morpheard penalty is more likely to deter. Then assume that Vandenhag is right, that this shows that we should keep the death penalty in order to deter more potential murderers and save more lives, that is, the ones who wouldn't have been deterred by the less fearful penalty, capital punishment. Okay, so so far that's just kind of parroting Vandenhag. We're not, you know, raising an objection yet. This is all just kind of recap. But now notice what happens. Okay, so by that very same reasoning, we could say this. Surely, death by torture is a more feared penalty than death. Certainly, I think that's true. If you ask me, you know, do I fear death more, or do I fear death after being tortured more, I'm going to say I'm more fearful of being tortured before dying. So, now following Vandenhag's reasoning, That means that death by torture is more likely to deter than mere death. That's probably something, I mean, I don't think Vandenhag this occurred to him, but if asked, Vandenhag would probably say, yes, that's right, death by torture is more likely to deter than mere death because death by torture is more fearful, and that's what I said. Right, Vandenhag says, that's what I said. But, you know, a more feared penalty is more likely to deter. But then, what this reasoning suggests is that we should institute death by torture in order to deter more potential murderers and save more lives. That is, if we institute death by torture, we can potentially deter those who wouldn't have been deterred merely by the death penalty. Now we're going to torture them as well, and so that will deter some people who wouldn't. have otherwise been deterred. Okay, now if you don't like that... which seems to be an implication of Vandenhag's view, I mean, Vandenhag doesn't talk about torture, but this seems to be an implication of his view, that death by torture should also be implemented, if you don't like that, then what we should do is abandon the original line of argument that was supposed to support the death penalty and ended up also supporting this. So, you know, I guess to focus a little bit on this last parenthetical remark, I have here. The basic idea is you could bite the bullet and say, yeah, you know, I'm totally pro-capital punishment, and if we can save more lives by not only having capital punishment, but by having capital punishment that involves torture, then great, let's do that. But the thought is just supposed to be that if a view like Vandenhag's has, according to Ryman, this result, that we should also be in support of death by torture as a punishment for... for example, murderers, then there's probably something wrong with that view because most of us don't think that it would be morally okay not only to execute a murderer but also to torture them beforehand. Alright, so then the second part of the lecture we're going to talk a little bit about this paper by Liebman et al. Liebman and his colleagues and what they're trying to do is not to argue for or against capital punishment as such. Okay, so they're not setting out to show that capital punishment is morally wrong or that it's morally acceptable. They're not doing either of those things. Rather, what they want to do is show that our actual implementation and practice of capital punishment in this society is fraught with error. And if they're successful in that, in showing that the way that we, you know, our criminal justice system and our legal system and our system of punishment, the way that we actually implement the death penalty in this country, that... there's significant error in it, if they're successful in showing that, that's going to have some pretty straightforward implications for the morality of capital punishment, just because, as we talked about early on, I guess last week in class, you might be okay with capital punishment in principle, but be against it because you think that there are serious problems with its implementation, or serious practical problems with it. And so this would sort of mesh well with that view where we're kind of setting aside the moral problems we might have with capital punishment, but just saying, well, an indirect kind of moral problem arises because we're making mistakes. Maybe we're convicting people who are innocent or something like that. And so that can serve as the basis for thinking that capital punishment should be outlawed. But their goal in this paper. isn't to prove that capital punishment should be outlawed. They're just saying, look, there are these problems with it, and maybe you didn't realize there are these errors in our implementation of it, and so we're going to talk about what they are. So that's sort of what they're doing in this paper. Let's take a closer look. So they did this survey of over 5,000 death sentences that were imposed between 73 and 95, and their conclusion, which they go into and sort of... cutting right to the chase here, but their conclusion is that the reason that capital cases spend so much time under judicial review is that such sentences, death penalty sentences, are fraught with error. And that takes a lot of time to catch. And so, you know, people sort of often note just how long it takes to actually execute somebody from the time that they're convicted of murder and given that sentence of the death penalty. It's years and years and years and years and years until they're actually executed. And they're saying, well, you know why that is? It's because there are so many errors in the process that there's a system of safeguards in place in order to try to catch those errors. And we still don't catch all of them, or at least there's good reason, as we'll see next week, for thinking that we don't. But in order to catch them, we need to devote tremendous resources to you know, scrutinizing every capital punishment case that comes up. So as I say here parenthetically, that makes it all the more disturbing that many states are trying to speed up the execution of death row inmates because there are so many errors that if we speed up the process, we will likely be executing innocent people with a significant frequency. Okay, so One thing to note here is how they define serious error, and they give some examples of what this is. I'm going to leave that to you to review in the text, but one thing I want to draw your attention to is how much serious error, as they put it, was found in their review of all of these death penalty cases in that time period. And they found that 68% of the roughly 5,000 sentences were the result of serious error. I mean, that is insane. It means that 68% of the time when somebody is sentenced to capital punishment, there's been what they call serious error involved. And you want to make sure, as I said at the very first bullet, just what that means, what counts as serious error. But what I want to do now is just remind you of this flippant dismissal of Vandenhags, where he talks about the possibility of mistakes in capital punishment, for instance, sentencing an innocent person to die. He's saying, you know, I think you'll recall, like, look, that's just, you know, an acceptable cost of having the practice in place. But when you combine that with these statistics in their paper of actual error rates, that's a fairly tough pill for us to swallow. I think even for Vandenhag to swallow, because he was sort of saying, Well, you know, if everybody, you know, I mean, if every once in a while an innocent person is convicted and then sentenced to die, that's not such a big deal, right? And you might think that's ridiculous, as I for one do. I think that's actually a very serious matter if we're, you know, executing innocent people. But here what we're introducing is the possibility that it's not such an infrequent thing. That is to say, it's not such an infrequent thing to sentence somebody to die. as a result of error. Whether they actually do die or whether the mistake is caught before that happens, you know, that's an entirely different matter. The thought is just that this raises a real problem for what already seems like a fairly callous position when we're talking about human lives.

against several of its most common objections. So what we're going to be doing this week is basically picking up where we left off with that topic. We're going to be discussing a pair of papers, one by Reiman and one by Liebman and Liebman's colleagues.

We'll start with Reiman. So his target, and what I mean by that is what it is that he's attacking, is straightforward. It's just deterrence-based arguments for capital punishment. So you'll recall what these are, I hope. And Ryman thinks that these deterrence-based arguments are no good.

And so he's not going to say anything about retributivist-based arguments. He just wants to show that deterrence-based arguments won't fit the bill, they won't do the job. And he thinks that the empirical evidence that the death penalty does deter people from committing murder, that that evidence is inconclusive. It can't be used in support of capital punishment on grounds of deterrence because that evidence just is no good, right?

It doesn't say conclusively that the death penalty deters. And then the second and more important point he makes is that he thinks that it can be shown on purely philosophical grounds that these claims of deterrence are unsupportive. So notice what's going on here. These are two very different kinds of things that you might do, and therefore two very different kinds of things he does do in the paper. One would be to say, look, these are deterrence-based arguments don't work because we just don't have any evidence, any empirical evidence, we don't have any data, that capital punishment deters.

Now if capital punishment doesn't deter people from committing crimes, then deterrence-based arguments are no good, right? An entirely different kind of thing we might do is argue against these deterrence-based arguments on what I referred to here as purely philosophical grounds, and that's just to be distinguished from empirical grounds. So instead of saying the data just doesn't support this idea that capital punishment deters, what we could do, what Ryman does do, second, is to say, look, I'm just going to show that it doesn't make any sense anyway.

Just if you think about it logically, philosophically, we shouldn't have even been tempted by or attracted to this idea that capital punishment deters people from committing crimes. Those are the two different kinds of things he does in his overarching aim of establishing that deterrence-based arguments are no good. And one thing I wanted to say before we get going very much further is that this lecture is going to be quite a bit shorter than usual, at least so I hope.

That's because Although there are some tricky points in the Ryman paper, the Liebman paper is really quite a bit more straightforward than most of what we do in this class. And so I think that just, you know, merely reading the paper by Liebman and his colleagues should be enough for you to get a good solid grasp of it without me having to lecture on it very much at all. I will do that toward the end of this lecture, but we're going to start, we're going to devote most of our time to Ryman. So let's pick back up with that. And he's got four different observations that support this idea.

and he just labels them 1 through 4 in his paper. I'm going to focus in this lecture on just two of those four. You're going to want to make sure, though, that you know what all four of them are, but the two that I'm going to focus on here are the ones that I take to be the most interesting, and that's why I want to devote our time to them.

They also happen to be the two that are the trickiest to understand, so hopefully this will help you out. Okay, one of them is just this. So if you remember Vandenhag, we... read most recently, people like that, people who support these deterrence-based arguments, they claim that the death penalty deters to a greater extent than life imprisonment, and that that's a reason for supporting capital punishment.

So this should be familiar, but just think about what's going on here. If you're making a deterrence-based argument for capital punishment, you're saying we should have capital punishment. Why? Because it deters Not just that it deters, but it deters more than life imprisonment would, right?

Because if it didn't deter more than life imprisonment, then that would be no reason for supporting capital punishment. In other words, if life in prison deters just as effectively as the death penalty does, then that in itself, you know, the fact that the death penalty might deter in some way, isn't going to be enough to get you the conclusion that we should have the death penalty, because life in prison would do just as well. So if that's true, that they deter equally well, then that's a problem for these people who like deterrence-based arguments. What we're doing here is just noting that people who do like those arguments are committed to the idea that the death penalty deters to a greater extent than life in prison. Okay, and if you'll recall, Vandenhag's reason for thinking that was that people fear the death penalty more than they do life in prison.

So why does he think that the death penalty deters to a greater extent than life imprisonment? Well, just because people are more afraid of it. than they are spending their life in prison. But what Ryman's gonna do is question this connection between fear and deterrence. So he says, and this is a direct quote from the paper, he says, from the fact that one penalty is more feared than another, it does not follow that the more feared penalty will deter more than the less feared penalty.

Unless we know that the less feared penalty is not fearful enough to deter everyone who can be deterred, and this is just what we don't know with regard to the death penalty. So there's a lot going on here. I feel like if you have a perfect grasp of what he's saying in this passage, you're like 90% of the way there.

This passage that I've isolated here, in other words, is of critical importance. So I want to really try to pick it apart. What I want to do first is just back up to this last bullet. where I said that what Ryman's doing is questioning the connection between fear and deterrence. So people like Vandenhag claim that the reason we can know that the death penalty does deter and that it does so better than life in prison is that people are more afraid of the death penalty than they are of spending their life in prison.

Ryman is saying, okay, I'll grant you... that I'm more afraid of dying than spending my life in prison. He's not questioning that.

He's saying it can be the case that people are more afraid or more fearful of dying than they are of spending their life in prison. And yet it won't necessarily follow that dying, by way of capital punishment, is more of a deterrent than spending one's life in prison. So let's take another look at this.

He says, from the fact that one penalty is more feared than another, so dying in the electric chair, for instance, is more feared, we can assume, than spending one's life in prison. From that fact alone, it doesn't follow that the more feared penalty, dying in the electric chair, will deter more than the less feared penalty, spending one's life in prison, unless we also know that the less feared penalty, spending one's life in prison, is not fearful enough to deter everyone who can be deterred. And then he adds, you know, and that's just what we don't know with regard to the death penalty. So what's going on here is he's saying, look, it's possible.

I mean, we could take the set of people who are capable of being deterred from committing murder. Because, you know, there's some people who just can't be deterred. They're going to do it regardless of what the penalty is. But forget them because it's irrelevant to the, you know, if anything that, you know, you might think that that.

hurts the case for capital punishments instead of helping the case for it. So we'll set that aside. There's a big group of people who can be deterred from committing murder. Now what Ryman's saying is that for all we know, all of those people who are capable of being deterred, okay, are capable of being deterred by life in prison. So Unless it's the case that there are some people who aren't deterred by life in prison, but are deterred by capital punishment, then that won't be a reason for caring about the fact that capital punishment is more feared than life imprisonment.

So maybe pause and rewind that. I'm going to talk a little bit more about it here, though. So, as I say here, you might actually read that passage more than once in addition to listening to what I have to say about it more than once. What he goes on to say immediately after that in the text does help to clarify things a little bit.

So he says, though I fear the death penalty more than life in prison, so he's granting that, you know, I do fear that more than I do life imprisonment. Even so, I can't think of any act that the death penalty would deter me from, that an equal likelihood of spending my life in prison wouldn't deter me from as well. So what he's saying is, look, you might think that the only way to deter murderers is to implement the death penalty, but if I wasn't afraid of spending my life in prison, I'm not gonna, or if I wasn't deterred by the fact that I was gonna spend my life in prison, I'm not going to be deterred by the possibility that I'm going to get the death penalty either.

So sort of put yourself in his shoes here. He's saying, at least, you know, and I think plausibly, I mean, I feel the same way, but I'm wondering whether you do. So think about this. Just everywhere, you know, when you're reading through this, just think about it from your perspective. So is it true that you can't think of any act that the death penalty would deter you from?

that you wouldn't already be deterred by, given the possibility of spending your life in prison. I think there is some strong intuitive plausibility to this idea. The idea is just that, yeah, the death penalty might deter. If we set aside these worries that Reiman does have about whether it actually does deter or not, given the empirical evidence, let's just assume that it does deter. The question then is, is it going to deter anybody who wouldn't already be deterred successfully by the possibility of spending their life in prison.

Okay, and so the second of the four replies that Ryman gives to deterrence-based arguments that I want to talk about in this lecture is this. So he just says, look, we can just forget all the other problems with Vandenhag's style deterrence arguments and just take them at his word and see what happens. So what he's saying here is, suppose that capital punishment does deter. Suppose that it deters more effectively than life in prison, and suppose that we think that's a reason for having the death penalty, the fact that it will deter. He's saying let's see what happens, let's see what follows if we like that kind of reasoning.

So again Vandenhag thinks that we should follow common sense and hold it a more feared penalty is more likely to deter, and so we have evidence otherwise. And then in turn, that would support capital punishment, at least if we care about deterrence. But Ryman is pointing out that if Vanden Haag is correct about all of this, it has a rather unpleasant and unexpected result that even Vanden Haag himself should not be okay with. Okay, so in order to see this, first just assume that Vanden Haag is correct, that a Morpheard penalty is more likely to deter. Then assume that Vandenhag is right, that this shows that we should keep the death penalty in order to deter more potential murderers and save more lives, that is, the ones who wouldn't have been deterred by the less fearful penalty, capital punishment.

Okay, so so far that's just kind of parroting Vandenhag. We're not, you know, raising an objection yet. This is all just kind of recap.

But now notice what happens. Okay, so by that very same reasoning, we could say this. Surely, death by torture is a more feared penalty than death. Certainly, I think that's true.

If you ask me, you know, do I fear death more, or do I fear death after being tortured more, I'm going to say I'm more fearful of being tortured before dying. So, now following Vandenhag's reasoning, That means that death by torture is more likely to deter than mere death. That's probably something, I mean, I don't think Vandenhag this occurred to him, but if asked, Vandenhag would probably say, yes, that's right, death by torture is more likely to deter than mere death because death by torture is more fearful, and that's what I said.

Right, Vandenhag says, that's what I said. But, you know, a more feared penalty is more likely to deter. But then, what this reasoning suggests is that we should institute death by torture in order to deter more potential murderers and save more lives.

That is, if we institute death by torture, we can potentially deter those who wouldn't have been deterred merely by the death penalty. Now we're going to torture them as well, and so that will deter some people who wouldn't. have otherwise been deterred.

Okay, now if you don't like that... which seems to be an implication of Vandenhag's view, I mean, Vandenhag doesn't talk about torture, but this seems to be an implication of his view, that death by torture should also be implemented, if you don't like that, then what we should do is abandon the original line of argument that was supposed to support the death penalty and ended up also supporting this. So, you know, I guess to focus a little bit on this last parenthetical remark, I have here. The basic idea is you could bite the bullet and say, yeah, you know, I'm totally pro-capital punishment, and if we can save more lives by not only having capital punishment, but by having capital punishment that involves torture, then great, let's do that.

But the thought is just supposed to be that if a view like Vandenhag's has, according to Ryman, this result, that we should also be in support of death by torture as a punishment for... for example, murderers, then there's probably something wrong with that view because most of us don't think that it would be morally okay not only to execute a murderer but also to torture them beforehand. Alright, so then the second part of the lecture we're going to talk a little bit about this paper by Liebman et al. Liebman and his colleagues and what they're trying to do is not to argue for or against capital punishment as such. Okay, so they're not setting out to show that capital punishment is morally wrong or that it's morally acceptable.

They're not doing either of those things. Rather, what they want to do is show that our actual implementation and practice of capital punishment in this society is fraught with error. And if they're successful in that, in showing that the way that we, you know, our criminal justice system and our legal system and our system of punishment, the way that we actually implement the death penalty in this country, that...

there's significant error in it, if they're successful in showing that, that's going to have some pretty straightforward implications for the morality of capital punishment, just because, as we talked about early on, I guess last week in class, you might be okay with capital punishment in principle, but be against it because you think that there are serious problems with its implementation, or serious practical problems with it. And so this would sort of mesh well with that view where we're kind of setting aside the moral problems we might have with capital punishment, but just saying, well, an indirect kind of moral problem arises because we're making mistakes. Maybe we're convicting people who are innocent or something like that. And so that can serve as the basis for thinking that capital punishment should be outlawed.

But their goal in this paper. isn't to prove that capital punishment should be outlawed. They're just saying, look, there are these problems with it, and maybe you didn't realize there are these errors in our implementation of it, and so we're going to talk about what they are. So that's sort of what they're doing in this paper. Let's take a closer look.

So they did this survey of over 5,000 death sentences that were imposed between 73 and 95, and their conclusion, which they go into and sort of... cutting right to the chase here, but their conclusion is that the reason that capital cases spend so much time under judicial review is that such sentences, death penalty sentences, are fraught with error. And that takes a lot of time to catch. And so, you know, people sort of often note just how long it takes to actually execute somebody from the time that they're convicted of murder and given that sentence of the death penalty. It's years and years and years and years and years until they're actually executed.

And they're saying, well, you know why that is? It's because there are so many errors in the process that there's a system of safeguards in place in order to try to catch those errors. And we still don't catch all of them, or at least there's good reason, as we'll see next week, for thinking that we don't.

But in order to catch them, we need to devote tremendous resources to you know, scrutinizing every capital punishment case that comes up. So as I say here parenthetically, that makes it all the more disturbing that many states are trying to speed up the execution of death row inmates because there are so many errors that if we speed up the process, we will likely be executing innocent people with a significant frequency. Okay, so One thing to note here is how they define serious error, and they give some examples of what this is. I'm going to leave that to you to review in the text, but one thing I want to draw your attention to is how much serious error, as they put it, was found in their review of all of these death penalty cases in that time period.

And they found that 68% of the roughly 5,000 sentences were the result of serious error. I mean, that is insane. It means that 68% of the time when somebody is sentenced to capital punishment, there's been what they call serious error involved.

And you want to make sure, as I said at the very first bullet, just what that means, what counts as serious error. But what I want to do now is just remind you of this flippant dismissal of Vandenhags, where he talks about the possibility of mistakes in capital punishment, for instance, sentencing an innocent person to die. He's saying, you know, I think you'll recall, like, look, that's just, you know, an acceptable cost of having the practice in place.

But when you combine that with these statistics in their paper of actual error rates, that's a fairly tough pill for us to swallow. I think even for Vandenhag to swallow, because he was sort of saying, Well, you know, if everybody, you know, I mean, if every once in a while an innocent person is convicted and then sentenced to die, that's not such a big deal, right? And you might think that's ridiculous, as I for one do.

I think that's actually a very serious matter if we're, you know, executing innocent people. But here what we're introducing is the possibility that it's not such an infrequent thing. That is to say, it's not such an infrequent thing to sentence somebody to die. as a result of error.

Whether they actually do die or whether the mistake is caught before that happens, you know, that's an entirely different matter. The thought is just that this raises a real problem for what already seems like a fairly callous position when we're talking about human lives.

Transcript for:Debates Surrounding the Death Penalty

Transcript for:
Debates Surrounding the Death Penalty