Thursday, March 20, 2008

Why I Support Capital Punishment, Part 5

Published 03.20.08 at

In the previous column, we saw that the practical objection about executing innocent convicts can be solved by heightening the capital standard to guilt beyond any doubt. Now, let’s look at some of the conceptual objections.

Conceptual Objection 1: You cannot teach people that killing is wrong by killing.

What punishment could we assess against criminals that wouldn’t be wrong when done to innocent people?

Is it inconsistent to punish embezzlers with fines? Is it inconsistent to put kidnappers in the liberty-deprived condition of prison? Would we be inconsistent, or merely brutal, to adopt a more Indonesian response to assault by publicly flagellating offenders?

Precisely because every form of punishment is a form of harm to the convicted, the problem with this objection is that it proves too much, indicting all expressions of any justice system. That’s why the proper response to it is to ask why the person advocates anarchism, since only the anarchist view (that all outside impositions upon a person are wrong) is consistent with the principle of this argument.

But that’s probably a bit much for your na├»ve friend in a casual discussion. Instead, ask him if he also opposes execution because of the risk that the convict is innocent. If so, then he is simultaneously arguing that all killing is wrong and that the killing of innocents is uniquely wrong. Every person who opposes CP because of the risk to innocents affirms, in making that argument, that there is something vastly different between killing those who have done nothing to deserve it and killing those who have. And clearly, this is the distinction that solves this objection.

Simply put, to allege that killing murderers and killing innocent citizens are the same is to deny the distinction between guilt and innocence which is the presuppositional foundation of all law in the first place. If we cannot distinguish between how we should treat lawbreakers and non-lawbreakers, we have much more elementary problems than rationally discussing the validity of capital punishment.

Conceptual Objection 2: It erodes the sanctity of human life.

There are two ways for our justice system to show that something is sacred: by protecting it from violation and by punishing those who violate of it. Clearly, in this case, the two are interconnected. Life is uniquely precious, which is exactly why taking the life of one who deliberately takes innocent life is the only way to affirm life’s sacredness. Rather than proclaiming the preciousness of life, allowing a known murderer to live is a declaration that life is not precious enough to justify the forfeit of another life as punishment.

When something is sacred, that does not mean that it cannot be violated. Rather, it means that it must be violated only in the rarest of cases and only in the most deliberate of ways. The almost absurd solemnity with which we execute people in this country is not a defect of our system, but a testament to the importance we attach to human life. Instead of eroding the sanctity of life, execution practiced with such regard actually affirms it.

Conceptual Objection 3: You can’t be pro-life and pro-capital punishment.

First, it’s a mistake to assume that all pro-lifers base their view on the idea that abortion is homicide. While this is common, there are, in fact, other grounds for opposing abortion. Nonetheless, I’ll grant most pro-lifers do oppose abortion for this reason.

According to this objection, it is inconsistent to oppose the killing of a human fetus while favoring the killing of a human murderer because one must treat all killings the same way.

What so offends us about abortion is the taking of an innocent life, the destruction of someone so vulnerable and guilty of no wrong. Executing a murderer doesn’t elicit the same response because we are, again, making the simple distinction between the innocent victim of a crime and the guilty perpetrator of that crime. Since this distinction is at the heart of our justice system, the person who can’t make it is back to equating being stolen from with being fined, and being kidnapped with being incarcerated, equivocations that make a life sentence in prison every bit as problematic as execution.

I am convinced that even those who grieve the death row convict do not view his death as a tragedy equal to that of his victim. In fact, I’d have trouble taking someone seriously who told me that his horror at an executed murderer was equal to his horror at the original murder itself. This difference of reaction acknowledges a distinction even at an emotional level between the two. It may not seem big enough to justify execution, but just getting opponents to admit the difference might start to erode their notion that the two are morally indistinguishable.

Furthermore, if the idea is that we must oppose all homicides if we oppose any, then we might reasonably demand that such opponents also protest every form of warfare or self-defense. Obviously, most death penalty opponents are not pure pacifists, which makes them no less inconsistent on this issue than they allege pro-lifers to be. I only point this out to show that many CP opponents are skewered by their own willingness to distinguish wartime and self-defense homicides from others.

I am willing to concede that it would be more philosophically rigorous and less confusing to use the more cumbersome label “pro-innnocent-life.” But we all know that rigor often yields to pith in modern discourse. Nevertheless, there are clear lines distinguishing abortion from capital punishment which this objection colors quite sloppily across.

However, as a point of practical concern, ending abortion is far more important to me than continuing to execute. I’d certainly rather save a few million innocent than kill a few hundred guilty. So, if I thought that opposing capital punishment would make me look more consistent to those who can’t make such distinctions and thus gain their support for ending abortion, I might well consider it. But I’d like to hope, perhaps naively, that we can get both issues right without pandering to such superficial thinking.

In the next column, we’ll look at the concerns that execution is unconstitutional, barbaric, motivated by hate, and degrading to the executioner.

1 comment:

dudleysharp said...

The Death Penalty Provides 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.

Enhanced Due Process

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.

Enhanced Incapacitation

To state the blatantly clear, living murderers, in prison, after release or escape, are much more likely to harm and murder, again, than are executed murderers.

Although an obvious truism, it is surprising how often folks overlook the enhanced incapacitation benefits of the death penalty over incarceration.

There are a few absolutes when it comes to Life Without Parole. The legislature can lessen sentences, retroactively, and the executive branch can lessen any individual sentence.

Enhanced Deterrence

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.

Enhanced Fear

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.

What of that more rational group, the potential murderers who choose not to murder, is it likely that they, like most of us, fear death more than life?

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 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.

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 . . . (1) 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, reasonably, 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) 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

copyright 2007-2009, Dudley Sharp
Permission for distribution of this document, in whole or in part, is approved with proper attribution.

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 (Sweden)