Tuesday, January 18, 2005

The killer argument

As a generally pro-America Briton, it does trouble me that thirty-eight of the US’s fifty states allow the death penalty in some form.

Although many states haven’t enforced it for decades, some have: Texas has seen 337 executions since 1976, and over 450 inmates are currently on death row.

For me, the rational argument was won by the anti-capital punishment lobby some time ago, which is why very few western countries are yet to abolish it.

In a recent debate over this hoariest of old chestnuts with the prolific right-wing blogger Orrin Judd of the renowned BrothersJudd, I actually managed to get in the last word and, it would seem, silence him within three or four posts – which, as regular OJ sparring partners will know, is no regular event. Now there is probably some much more rational explanation for Orrin’s silence, but I don’t care, so I’m just going to go ahead and assume that I gained a rare victory.

The killer argument
As all former sixth-form debaters will know, there are many worthy arguments against the death penalty of varying degrees of validity – the outdated barbarity, the inequality of its application according to how good a lawyer you can afford, its ineffectiveness as a deterrent, etc.

There are even some significant arguments in its favour: a murderer has forfeited his right to life, the worst crimes must have the strongest punishments etc.

However, all of these pale into insignificance when we consider the best argument against capital punishment: that is, the fallibility of the justice system.

Miscarriages of justice don’t just happen on very rare occasions. They happen frequently, and sometimes they happen deliberately.

Timothy Evans, Stephen Downing, Randall Adams, the Birmingham Six, the Guildford Four and Krishna Maharaj are merely some of the most famous cases in Britain and America. Goodness knows how many innocents were wrongly thrown off this mortal coil in Britain prior to 1964, and how many still are in the US, China and the Middle East.

In the States, 7% of those whose capital convictions were overturned between 1973 and 1995 were found innocent on re-trial.

In fact, the numbers are irrelevant. Once you know that your justice system has put even one innocent person to death, you simply cannot justifiably take the risk again, if you want to have a shred of decency.

Why a killer argument?
I have described the fallibility of the justice system argument as a ‘killer’ because there is no response to it which is both valid and sane.

The counter-arguments with which I was presented on BrosJudd were as follows:

1) It doesn’t matter if we put some innocent people to death, because the overall good is greater, in that by the weight of probability we reduce the number of violent felons in our midst.

2) It doesn’t matter if we put some innocent people to death, because those accused of murder are usually violent people anyway.

Both of these arguments were advanced by ‘Bart’. Both fail the sanity test. A much stronger counter-argument is:

3) It is an argument not just against capital punishment, but against all punishment, so by following the logic we end up unable to convict anybody in case we get it wrong.

This passes the sanity test, but fails the validity test. It is specifically an argument against capital punishment, because capital punishment is irreversible. The Guildford Four got compensation and a chance to rebuild what was left of their lives. Not much, when you consider how unpleasant it must be to be locked up for years for something you didn’t do...

...but still a lot better than a posthumous pardon, which is what Timothy Evans got.

Even Sean Penn gets it right now and again
Naturally OJ and his ilk instinctively dislike anti-capital punishment campaigners because they associate them with bleeding-heart liberals and Susan Sarandon movies.

But sometimes even bleeding-heart liberals stumble across a single, overriding, unanswerable, killer argument, and you just have to accept it.

This is one such occasion. I’m convinced that one day even the most red-necked red states will grasp that.


martpol said...

Andrew, I'm passionately anti-capital punishment. However, the "miscarriages of justice" argument isn't as morally firm as I would like, because it implies that, if technical advances such that certain crimes could be proved/disproved beyond a shadow of a doubt (we're already moving in this direction with DNA testing), then execution would be back on the agenda as a legitimate punishment. My instinctive belief (but one not backed up by evidence) is that most of us hold our anti-capital punishment beliefs as a distinctively moral position (I love to use this word - it seems so un-PC these days), and "miscarriages of justice" is not really a moral argument.

By “morals” I don’t mean necessarily mean those in the Judaeo-Christian tradition (by this token, US states packed with fundamentalist Christians would have abolished the practice long ago), but the kind of globally understood morals often formulated these days as human rights. Human rights are non-negotiable and inalienable, and that must particularly apply to the most fundamental right of all – the right to life. Otherwise, who is to delineate which people deserve to ‘lose’ that right and which don’t? This is the classic slippery slope argument, and appears to apply particularly to the USA, which continue to execute, among others, the mentally ill, foreign nationals unable to communicate with consular officials, and a disproportionately high number of African-Americans.

It’s a telling fact that the USA continues to be one of only two countries in the world (the other being Somalia) which hasn’t ratified the United Nations Convention on the Rights of the Child. Some states, apparently, aren’t keen on the clause about not executing people who committed their crimes when they were children.

Brit said...

Martin -

Not quite. First, absolute infallibility in conviction can never be guaranteed because humans are fallible.

Second, even if it could, the argument would only collapse if all miscarriages of justice were accidental.

But they're not all accidental. Sometimes they are deliberate.

The Guildford Four signed confessions under police torture. Luckily not all of the justice system is corrupt, so their conviction was eventually overturned when new evidence came to light. We don't have the death penalty, so the Guildford Four lived to see that overturning.

martpol said...

I grant you the point about deliberate miscarriages of justice. It should be noted, though, that both of our arguments are based on an absolute. Yours is "humans can never be infallible"; mine is "if we ever get to the point where criminals can be infallibly convicted, then the miscarriage-of-justice argument falls".

Absolutes don't tend to convince. So the moral stance is needed as additional 'ammunition'.

Orrin said...

The killer argument fails because all punishment is irreversible. It's all well and good to pat yourself on the back over the freeing of a couple of political cause celebres, but what of all the innocent black kids from Brixton, or wherever, who'll serve sixty years in proisons rife with violence, rape and racism and then die unmourned. Them you just tortured before killing--the worst of both worlds. Your whole argument depends on the absurd notion that although innecents are convicted we eventually realize our mistake and set them free. Not likely.

Duck said...

Your standard that if even one innocent person were executed then capital punishment is not worth the risk does not pass the test of reasonableness.

There are several societal practices that up front everyone acknowledges will cause the deaths of innocent people, but we do not forbid their practice because these practices are either indispensable to the functioning of society or they result in a net benefit. An example of the former is automobile driving. Every year in the US some 30 to 40 thousand people will die on the roads, nearly the total American death toll for the entire war in Vietnam. By your reckoning, shouldn't this practice be banned?

An example of the latter are childhood vaccinations. Though the safety record of these vaccinations is near perfect, there is inevitably the unfortunate outlier who will have a violent reaction to the vaccine and die. The only way to avoid this from happening is to ban vaccinations, but that would sentence an even greater number of children to death by preventable diseases.

Now you would say that these practices are necessary, but capital punishment is not, because we can punish killers via life imprisonment. I don't accept this argument, because I am a big believer in retribution as justice. By sentencing killers to death, we are making the statement that life is sacred, by passing the ultimate sentence on those who would willingly and wrongly take an innocent life. It sets the moral framework for a society by letting everyone know that they will be held fully accountable for their actions. It is a promise to those who will willingly accept the lawful rule of the government, and give up any right to affect their own retribution, that their life and welfare will be as highly regarded by their government as they would regard it themselves.

You may see it as barbaric, but it is the logic of human social dynamics. If you deny such logic, then you end up with the situation where a man is considered a murderer for defending his own home from an intruder.

Brit said...

Duck -

If I were arguing from an idealistic standpoint, which I'm not, I would point out the absurdity of this sentence: "By sentencing killers to death, we are making the statement that life is sacred".

If I were arguing from a statistical standpoint, which I'm not, I would point out that capital punishment has no noticeable effect whatsoever on murder rates. If it did, we and other western countries would be overrun by murderers, and Texas wouldn't need to have 450 people on Death Row because the death penalty would be such a powerful deterrent.

All of those arguments are valid, but for me they lack the killer punch.

It's not just the Guldford 4 and the Birmingham 6. There's lots of other numbers too. The Bridgewater 4 were cleared in 1997 after 17 years in prison. In 2000 the M25 3 were released after it shown that there was a "conspiracy of perjury" to convict them. Posthumously, Derek Bentley and Hussein Mattan have been pardoned. Lucky them.

Which is why all I'm waiting for is a convincing answer to this question: "given that we know the human beings responsible for enforcing justice often convict the wrong people, is it justifiable to give them the power of killing?"

Or how about this one: "could you look Gerrard Conlon in the face and say, 'although you didn't do it, for the greater good I wish you were dead' "?

I haven't had one yet.

Brit said...

Orrin -

This is indeed an honour.

Your argument fails the validity test, and skates awfully close to the sanity test line.

Of course, we must have some form of justice system, some form of punishment for all crimes, and convicted murderers must be kept separate from the general public, especially if they are considered dangerous.

But while a wrongly convicted person who happens to be alive can still benefit from any new evidence or appeal - as we have seen, a not-infrequent occurence - a dead one decidedly cannot.

You offer a dismal portrait of the life of the prison inmate: "violence, rape and racism". That may or may not be the case, but let's suppose it's true.

From a soft-hearted leftie perspective I could understand your point as an argument for reforming and improving prison conditions.

From a hard-hearted rightie perspective I could understand your point as an argument for keeping it that way, because those guilty of society's worst crime deserve the misery of the consequences.

But from the bizarre-mixture-of-the-two perspective that you seem to be taking, by which it's kinder, nay, more humane on convicted criminals, whether innocent or guilty, to actually kill them rather than imprison them...well, I just can't understand that at all.

Brit said...

Duck -

Sorry, but I can't resist the old 'and one more thing'.

And one more thing. You say: "There are several societal practices that up front everyone acknowledges will cause the deaths of innocent people, but we do not forbid their practice ... An example of the former is automobile driving. Every year in the US some 30 to 40 thousand people will die on the roads...By your reckoning, shouldn't this practice be banned?"

Of course, on the face of it I can easily distinguish between deaths as the result of accidents, and the calculated ending of an individual's life.

However, I'll just address the logical part of the argument:

Presumably you think that the reductio ad absurdum for my argument is the banning of driving, because my argument depends on the notion that life is sacred.

But in fact it is your argument FOR the death penalty that explicitly rests on the claim that life is sacred. So the reductio ad absurdum problem is yours. (Except that it isn't, for the reasons mentioned above).

Interestingly, my argument, being only mildly idealistic, does NOT rest on the notion that life is absolutely sacred. It requires that life have significant value, but the crux of it is that the justice system cannot be trusted to make irreversible decisions.

Orrin said...

I'm fine with either their abyssmal lives in prison or capital punishment, just against pretending the latter is somehow worse than the former. Your argument assuages your conscience--it doesn't comport with reality.

Hey Skipper said...


I'm against capital punishment on practical grounds--carrying it out is just too expensive, and as far as protecting society goes, doesnt' work any better than a sentence of life without parole.

I'm also against it on the same grounds you are. In many cases, the effect of the evidence is to force the defendant to prove a negative. If life without parole is available, I just can't see what capital punishment otherwise provides that compensates for the certainty of intentionally ending the lives of those innocent of the crime for which they were convicted. (The issue of intent, as you noted, distinguishes this from highway and vaccination deaths, BTW, since they are unintended consequences)

I find Orrin's argument that all punishment is irreversible troubling--when you come right down to it, he is to a great extent right. Although, I doubt many lifers would volunteer for capital punishment as a way to get an early out. Further, absent capital punishment, there is at least a possibility to minimize the extent of the unjust imprisonment.

But that doesn't quite cover the territory. While I'm not a lawyer, I believe it is possible to write rules of evidence such that, in order to allow a capital conviction, the effect has been to prove a positive. For one (and maybe only) example, if DNA can positively exonerate someone, it can also positively convict.

In such cases, and for sufficiently awful crimes, I'm all for killing the guilty b*****ds.

Duck said...

Capital punishment is the intentional killing of guilty persons. If innocents are inadvertently put to death, then that is as a result of error, not intent. It is very much like the child who is killed by a vaccine.

My argument is that you can't categorically rule out a practice just because of the possibility that innocent people will be killed inadvertently by that practice. You have to measure the importance of that practice in its intended effect against the cost of the inadvertent deaths.

So, you have to argue the death penalty on the merits of its intended effects, not its unintended consequences. The deterrence argument to me is irrelevant. Justice is not about assigning punishment as a deterrent to other crimes, but about punishing perpetrators for a crime committed. The question is, what is the fair punishment for intentional, wanton murder? What price should a citizen expect his society to exact in retribution for his murder? I don't understand when people use the argument "putting the killer to death won't bring back [enter name of loved one]". That is precisely why the killer should be put to death. He has committed the ultimate crime against another, he has robbed that person of life in a way that cannot be compensated.

To place the life of a killer on an equal par with an innocent person is not so much to value life as to devalue it down to the lowest common denominator. It is as if you said you value art highly, but you would place the same price on a Rembrandt as you would a painting of Elvis on black velvet, or dogs playing poker. If you don't make those who would wantonly take a life pay the ultimate price, then you are not placing an ultimate value on life.

Brit said...

Duck -

But because I'm not particularly arguing on idealistic grounds, I don't need to disagree with you. I don't even need to deny that those who kill deserve death. Possibly they do.

I merely need to place sufficient value on life to propose that if you are going to exact the ultimate penalty - that is, kill someone for a crime - then you must be absolutely 100% certain of the following:

1) that the person did commit the crime
2) that there is no chance that the prosecution has been influenced by false grounds or corruption in policing or the judicial system
3) that there is no chance that a subsequent appeal or new evidence could overturn the decision.

Since we know for a fact that numerous people have been prosecuted wrongly, we know that the justice system is fallible. So we know that we can never be 100% certain of these conditions.

Now, if you look at the way I've set up this argument, you'll notice that in a way I've sort of rigged it. That is, all of your arguments (except for OJ's - which attacks the capital-punishment-is-unique end of the argument, and I flatly deny on common sense gounds), if they cannot prove the infallibility of the justice system, MUST ultimately boil down to this:

"It doesn’t matter if we put some innocent people to death, because as long as we put some guilty people to death, the overall good is greater."

Which is Bart's argument, and I've already ruled it out as failing the sanity test.

So even though I'm not entirely unsympathetic to some of the pro-death penalty arguments - though I unsympathetic to most - no amount of arguing for its benefits will convince me.

Brit said...

And one more thing.

The idealistic debate about the rights and wrongs of killing guilty people is possibly insoluble.

But I'm so convinced that the fallibility of the justice system argument is a killer, that I'm willing to make a prediction for the US.

Some time in the next few years, a case of an innocent man being put to death will become high-profile. (Randall Adams was pretty close to being that man - but he got lucky).

There will then be another debate in the US about capital punishment. Nothing will change for a bit, but there'll be a debate.

A few years after that, there'll be another high-profile case of an innocent man being put to death, and another debate, and this time it will be a lot closer.

It might take another two or three innocent men and debates, I don't know, before Texas finally twigs, but it will happen. And within the next 20-30 years the US will have abolished the death penalty completely.

If it doesn't happen, I hereby declare that I will eat my hat.

martpol said...

Duck -

I, however, do argue on idealistic grounds that capital punishment is wrong. I fundamentally disagree that the whole point of justice is to exact retribution for crimes committed. Retribution must not be part of justice systems in countries which consider themselves to be civilised. Rather, the purpose of justice is to provide positive benefits for society and for individuals.

Retribution has no direction other than for the victims of crime, whether they be individuals, groups or organisations. I oppose the notion that victims should have a say in the extent of punishment: justice must be seen to be done equally and fairly, no matter who are the criminals or victims. Victims can't help provide this sort of clarity of justice, because they're too close to a crime: ask the average person who has their home broken into and they will suggest that the perpetrator be "strung up" or "rot in jail". Such a response is unhelpful for society.

Duck said...

I still say that your 100% certainty threshhold does not pass the reasonability test. There is no area of socio-economic life that can pass this test, and people are not that risk-averse that they will demand a stop to any practice, no matter how valid or necessary in its intended effects, because the 100% test cannot be met.

Orrin's argument has merit. You put too much faith in the power of truth to win the day in cases where individuals are wrongly convicted. Many people are wrongly comnvicted of serious, but non-capital crimes, and reversing these convictions after the fact is the exception, not the rule. People may face life sentences in these cases. A lifetime spent languishing in jail for a crime not commited, as well as a reputation destroyed is scarcely more humane than a death penalty, if not less so. Death penalty cases in the US are allowed automatic appeals, and the amount of attention and scrutiny given them, by the nature of the sentence, are greater than for non-capital cases.

Either case, where an innocent man is put to death or where an innocent man is imprisoned for many years and even life, represents a terrible tragedy. Your philosophy would make the former an unthinkable travesty which we must avoid by totally banning the practice of capital punishment, but you are comfortable with the consequences of the latter. The distinction between the two kinds of tragedies is a matter of degree, not of kind. Personally, if I had to choose between being executed and being imprisoned for life, I am not so sure that I would prefer the latter.

Brit said...

Duck -

"The distinction between the two kinds of tragedies is a matter of degree, not of kind."

I find your, and Orrin's, refusal to see the blindingly obvious difference between being killed and being imprisoned very strange.

If, like the Guildford 4, you are cleared by appeal or because new evidence comes to light - as has in fact happened in real life on many occasions - then you get your reputation, compensation and whatever is left of your life back if you are alive (might be only a few fairly miserable years, might be many happy years).

But all you get if you are dead is a posthumous pardon, which, to a corpse, frankly isn't worth the paper it's written on.

"Either case, where an innocent man is put to death or where an innocent man is imprisoned for many years and even life, represents a terrible tragedy. Your philosophy would make the former an unthinkable travesty which we must avoid by totally banning the practice of capital punishment, but you are comfortable with the consequences of the latter. "

I'm comfortable with neither the former nor the latter. I don't like the idea of innocent people being punished in any form.

But whereas the latter is unavoidable under a necessary but fallible justice system, the former is very easy to eliminate from all possibility entirely: you just abolish capital punishment. It's worked very well for thr vast majority of the civilised world.

Peter Burnet said...


"But whereas the latter is unavoidable under a necessary but fallible justice system, the former is very easy to eliminate from all possibility entirely: you just abolish capital punishment."

Why is the latter unavoidable? Just take out the word "capital" from your second to last sentence and you have solved everything. It's not as crazy as it sounds. There was a time about a thousand years ago where most justice was a private affair and most wrongdoings, including murder, were dealt with privately or by fines and restitution.

There are good arguments for abolishing capital punishment, even though I don't usually share them (I'm pro, but wet). One is our inability to define a crime in a way that distinguishes the horror of the truly heinous from more legalistic definitions. Another is the growing politicization and legal fettering of the old perogative of mercy, which was an attempt to do just that. But I can't see how your rationalism can save you here. Somewhere, deep down, you will fall into a "reverence" position, or it doesn't matter much rationally. After all, you can hardly say that capital punishment in the States is a big threat to the group, social efficiency or anti-survival.

Brit said...


Except that I acknowledge that my argument is 'mildly idealistic'. It's not 100% based on material reason or social utilitarianism. The only argument on this list that meets that criterion is Jeff's: "I'm against capital punishment on practical grounds--carrying it out is just too expensive, and as far as protecting society goes, doesnt' work any better than a sentence of life without parole."

But my anti argument is less idealistic than most of the pro-capital punishment ones you come across, which tend to be based upon the notions of just retribution or sending a 'message'.

Actually, I think the idealistic arguments for capital punishment are mostly pretty tenuous, inconsistent, hypocritical or flawed, but I've purposely avoided presenting purely idealistic arguments myself because:

1) we all know what they are anyway
2) once each side has presented their idealistic case, there's no real room for debate other than each side saying 'I think my ideals are superior to yours'.

By posing a much more practical question, such as "given that we know the justice system often convicts the wrong people, can we trust it with the power to kill them?", I think you force each side to address the issue, and you get a proper debate going.

The question is a really good one because those who argue that, for example, capital punishment is necessary to show that we view life as sacred, have to work out a way to answer it, and it isn't easy without some serious theoretical stretching.

Hey Skipper said...


What if it is possible to prove positively the accused committed the crime?

Peter would be the expert on whether rules of evidence can be devised such that a guilty verdict is so overdetermined as to eliminate the possibility of mistake.

But take it, for the moment, as stipulated. What does it do you to your argument?

Brit said...


That would be the best response to the argument: to show that the justice system could actually be infallible.

But I answered the question way at the top of this debate:

First, practically speaking I don't think we'll ever be able to say 'now the system is infallible', because even as the tools get better, the people using the tools will always be fallible.

But, to answer the question properly: even supposing we could arrive at absolutely infallible evidence, my argument would only collapse if miscarriages of justice were always the result of well-intentioned error or accident.

But some miscarriages, such as the Guildford 4 and Randall Adams, have involved deliberate interference with processes of justice, including perjury, torture and falsified evidence.

Since we can never rule out the misuse of even infallible tools of prosecution, the argument still stands.

Having seen the various attempts here to answer this objection to capital punishment, I'm more convinced than before that it is unanswerable without resorting to Bart's 'it doesn't matter if we kill some innocent people, as long as we kill enough guilty people.'

Which sacrifices both of the two key elements of most pro arguments, as outlined by Duck:

1) that capital punishment sends a message that 'we will not tolerate murder'(in fact, if you're willing to kill a certain number of innocent people, it sends the opposite message)

2) that life is sacred (in fact, if you're willing to kill some innocent people, then clearly life is not sacred).

Once you've sacrificed these two key pieces of the pro- ideology, you're reduced to practical or utilitarian reasoning, and here the pro argument really is on shaky ground, as the stats are pretty much all in the anti- favour.

Hey Skipper said...


I in fact think it is possible to construct rules of evidence such that an erroneous conviction is so close to impossible as to make the distinction completely irrelevant.

For example: for a crime to merit the death penalty, the guilty verdict must be base on clear video tape of the perpetrator in the act AND perpetrator's fingerprints on the weapon AND fiber/DNA evidence from the crime scene on the perpetrator AND fiber/DNA evidence from the perpetrator at the crime scene.

If such rules were in place, I think we can safely say that the odds of an incorrect conviction would be vanishingly small.

Under those conditions, your killer argument collapses.

But, can you see where I am going with this?

Your killer argument is persuasive, but attempting an outright ban would fail because people would grant your point and want to kill the guily bastards anyway.

Therefore, ban capital punishment by consequence of evidence rules.

After all, under rules similar to mine proposed, not only would there be no chance of putting an innocent man to death, it is virtually certain no conviction would have an evidentiary basis sufficient to support a death penalty.

Thereby ending capital punishment by default.

Peter Burnet said...


Hmm. You characterize your argument as "mildly idealistic", but you are absolutely convinced of the rectitude of your position and certain the world will rise as one to agree with you someday. I think I might keep my distance if you were ever in a "highly idealistic" frame. :-)

Brit said...


Yes, you should hear me on the evils of Manchester United...

'Mildly idealistic' because the argument is based on a lack of faith in the justice system to correctly identify guilty people, not the ideal that killing guilty people is wrong.

It's inevitable that civilised places will get it. Might take a little longer for Iran and Texas...