What’s It Like To Live Without Illusions? Tough, And It Sucks

illusion

About 6 months ago, I decided to do a bit a self-experimentation. I tried to identify as many of my illusions as I could, and then see if I could lose them one by one. Readers of this blog – those who are still around – may have noticed one of the first: that this is an interesting blog. I stopped writing after decades of what often seemed like talking to a wall. After all, if few other people like what I do, then why should I? Wisdom of the crowds, and such. But that’s hardly the most important illusion I tried to get rid of. (“Tried”, since here I am, writing again…)

Over the last years, I read a lot about free will, blame and moral responsibility. My writing on human rights made me conscious of the harm we inflict on each other while trying to hold “wrongdoers” to account: capital punishment, mass incarceration, police brutality and so on are well-documented human rights violations, but the interesting thing about them is that they imply beliefs – in the minds of the perpetrators – about victim accountability and responsibility. The belief that people should be held accountable for their misdeeds – and should suffer for them – wraps around another belief: that people possess some form of free will.

The growing consensus in the fields of psychology and neurology (including evolutionary psychology, brain imaging and the study of systematic biases) is that free will is an illusion. “Illusion” is probably too strong a word in this case, but the literature has certainly convinced me to be more generous to “wrongdoers”. Not only should we avoid harsh punishment for consequentialist reasons – we do more harm while punishing people than the good that may come from often imaginary deterrent and protection effects – but also because punishment has become little more than an overly theatrical way of blaming people who seem decreasingly blameworthy.

finger_wag_hypnosis

So let’s say that in general I’ve tried to rid myself of the illusion of judgment. Negative judgment at least. I try to no longer blame people for their shortcomings. (Sorry for the split infinitive here, but let’s face it: grammatical rules are often used as a theatrical means of blaming people and of signalling our own superiority relative to the blameworthy. Communication is about understanding, and if rules can assist in understanding then they are good. If not, lose your illusion.)

Avoiding blame may seem dangerous: if we no longer blame people for their mistakes and misdeeds, then how will they learn and become better people? Is mutual improvement also an illusion that should be abandoned? I don’t think so. But there’s a large space between blame and indifference. You can tell people about their mistakes without judgment. It’s tricky, but doable.

What about positive judgments? Do I no longer appreciate beauty, music and art? To the extent that beauty is an illusion, that’s probably the hardest one to shed. A sensation of beauty just comes over you, unexpectedly. You can’t fight it or reason yourself away from it, as you can with free will. You can try to tell yourself that a beautiful body is just a bag of bones, meat and human waste made to look appealing because bodily attraction has helped humanity to survive during our difficult early evolution. However, you often can’t keep fooling yourself into believing this, at least not in the sense of immediate, intuitive belief.

What about music? As an adolescent I became enchanted by Wagner and I started to read a lot about him, including a lot of critical stuff arguing against his method: how silly it is to use leitmotivs, as if we can’t see that Wotan comes on stage and need to hear his tune as well; how Wagner did not respect “classical” rules of composition; how repetitive he was; how loud, bombastic and Teutonic; how the German language was unfit for opera, especially when littered with alliteration. And so on. All of this made me doubt, and I almost gave up being a Wagnerian because of it. But I couldn’t. The music is just magic, and it blows you away no matter how much you rationalise against it, at least if you’re open to being blown away. The beauty of it may be an illusion. In the narrow sense that you get tricked by a cunning and scamming composer. Or in the broader sense: beauty is no more than brain stimulations that have developed over the course of human evolution because individuals who are receptive to these kinds of stimulation are happier and therefore more likely to survive.

wagner quote

So far so good, you may say. Get rid of the noxious illusions, if you can, and keep the pleasant and harmless ones. Good work Spagnoli! But then why do you tell us that it sucks? Because illusions are like faces in things. Once you train yourself to see faces in things, you start to see them everywhere. Same for illusions. Friendship starts to look like an illusion. You try to ignore your friends to see whether they really care about you. Do they show you that they care by asking you why you ignore them? Nah. They just ignore you back because you’re being such a dick.

And then there’s LOVE: there’s a long history of love bashing. Do we really love the people we love? Why do we love that particular person and not another one? Seems a bit arbitrary to us all, at some points in our lives. Just admit it. It could just as well have been someone else. What is love really? Perhaps not a lot more than just another evolutionary adaptation inherited from early humans who were frail and needed to stick together in small family type groups that cared for each other and their offspring in a hostile prehistoric environment. Maybe. But if so, then love is no longer relevant since that kind of frailty has been largely overcome. Love is reduced to companionship and sex, both of which I’ve argued may be just as illusory (albeit in a pleasant way as long as you manage to avoid thinking below skin level.)

And now for the most dangerous illusion of all: are you actually alive? You’re losing your friends and loved ones. You’re counting the times that you were ignored during meetings at work; that the girls on the bus didn’t look back at you; that you had to repeat yourself; that your email went unanswered. You remember the accident you were in as a child, and start to wonder whether you’re Bruce Willis. At best you come under the impression of slowly fading away, quite literally. Needless to say that this is dangerously self-destructive. From a medical perspective, it looks like an illusion or delusion. But it may just as well be the product of fanatical and self-reinforcing opposition to illusion.

How to get out of this trap? I’m not sure you can, but an old analytic philosophy trick seems to help: define your terms, analyse the meaning of words. If you feel overwhelmed by the loss of illusions, start to define “illusion”. You’ll probably notice that the term is vague and overly inclusive. Which would account for the tendency to see illusions everywhere. A precise definition of the word can help you get out of the anti-illusory maelstrom. Perhaps.

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Capital Punishment, What Can We Hope For?

Emile Friant; Capital Punishment; 1908
Emile Friant; Capital Punishment; 1908

The death penalty is going out of style. Many people have many good reasons to be happy about that, and I’m among those who consistently advocate against this inhuman punishment. (Without losing sight of the many other forms of injustice perpetrated against – duly or unduly – convicted criminals).

However, it’s not going away fast enough. One can wonder why it’s still practiced at all, and hasn’t gone the road of slavery, torture, human sacrifice or similar remnants of the Middle Ages which, to the extent that they still exist, are mostly hidden in shame.

Instead of trying to answer this question, I’m going to ponder an easier one: when can we hope the death penalty will be abolished altogether? No way of knowing for sure, of course, but we can extrapolate some data sets. For instance, there’s the hopeful evolution of the numbers of countries that have outlawed the practice. So-called abolitionist countries can be divided into two groups: abolitionist in law or in practice. Depending on the source, there are about 100 countries that have no death penalty in their laws, and about 35 to 40 that still have laws but no longer apply them. That leaves about 60 so-called “retentionist” countries (some would prefer a less flattering qualifier). (Again according to the sources, there are about 195 independent countries in the world today).

Venezuela was the first country still existing in the world to abolish the death penalty for all crimes, doing so by Constitution in 1863. Among the last countries were Russia, Argentina and Latvia (you can find the complete list here). The rate of abolition accelerated quickly over the course of the last 3 decades, as I show in this graph:

death penalty, number of abolitionist countries

As this is a case of exponential growth, we can extrapolate:

death penalty, projected abolition worldwide

If the trend over the last 4 or 5 decades continues, and the most recent flattening of the curve is just a glitch – two big “ifs”, I admit – then the death penalty will be illegal everywhere sometime around 2022.

Another, and probably more relevant set of data are the actual numbers of executions. It’s hard to get your hands on a long time series of reliable numbers for the word as a whole, partly because data on executions in China – by far the biggest killer – are notoriously incomplete. Still, if we graph the available numbers for some of the worst countries, and assume that secrecy isn’t becoming more of a problem over time (again a big “if”), then we get a similarly hopeful evolution for most countries:

numbers of executions China Iran Saudi Arabia United States

(source)

Were we to add a trend line as in the graph on abolition, then China would stop executing in 2017, which seems a bit optimistic. Saudi Arabia would stop in 2027. The US only in 2034. This neatly illustrates the limits of statistical analysis, since I’m ready to bet that the order will be exactly the reverse.

Declining popular support is a further indication of the demise of the death penalty:

popular support for the death penalty in the US

And not just in the US. According to some sources, a majority of Chinese think their government executes too many people, although a clear majority still favors the punishment in principle. (Needless to say that public opinion is difficult to measure in authoritarian countries, and may be affected by authoritarian practices and the relative paucity of public debate). Less than half of Britons, French and Australians support the reintroduction of the death penalty. On the other hand, 55% of Brazilians and a stunning 85% of Japanese are in favor. (Source).

Capital Punishment (47): What’s An Acceptable Error Rate When Human Lives Are At Stake?

Based on the proven rate of exonerations among U.S. death-row prisoners in the past two decades

U.S. courts appear to have an error rate in capital cases of between 2.5 percent and 4 percent. (source)

Since the reinstatement of the death penalty in the U.S. in 1976, more than 140 men and women have been released from Death Row, some only minutes away from execution (source). That’s a not insignificant number of wrongful convictions. DNA testing has a lot to do with it, and one can see similar patterns in non-capital cases:

researchers examining biological evidence from hundreds of Virginia rape convictions between 1973 and 1987 determined that new DNA testing appeared to exonerate convicted defendants in 8 percent to 15 percent of cases. (source)

Taking into account that DNA evidence is not available in all criminal cases or in all types of crimes, the real error rate in U.S. justice is probably even higher. One can only imagine the rates in other, less developed criminal justice systems in other parts of the world.

Of course, miscarriages of justice are particularly painful in capital cases where we are not just talking about wrongful convictions but also wrongful executions. The latter will be less numerous than the former given the sometimes extended periods of time between conviction and execution, time which can and sometimes is indeed used to expose miscarriages of justice. Still, we have to assume that there’s also a significant number of wrongful executions: DNA is not always available – it depends on the circumstances of the homicide – and other means of proving innocence are not always successful even when lawyers have years to do their work.

This is why I believe that any error rate, however small, should be unacceptable in the application of capital punishment. You cannot correct a wrongful execution. You can, to some extent, correct a wrongful imprisonment: you can release people, even if you can’t give them back their lost years. You can’t bring people back from the dead. Given the evidence of error rates, it must be beyond doubt that the criminal justice system in the U.S. – and elsewhere as well – has executed innocent people. The most prominent known cases are those of Carlos DeLuna and Cameron Todd Willingham. And nothing Scalia or any other delusional proponent of the death penalty believes changes the facts.

It’s my opinion that capital punishment as such is unacceptable, even if the error rate were 0, but an error rate higher than zero makes it all the more unacceptable. And it should make it unacceptable even for proponents of capital punishment. After all, if you think that an error rate of, say, 2% is OK, then why not 2.1? 2.2? And so on. Human life loses all value once you accept an error rate, however small, and most if not all proponents of the death penalty are motivated by their love of human life.

More posts in this series are here.

Capital Punishment (46): “Looking Deathworthy”

That’s the provocative title of a new paper showing a correlation between the likelihood of receiving a death sentence and the perception of having a stereotypically Black appearance:

Researchers previously have investigated the role of race in capital sentencing, and in particular, whether the race of the defendant or victim influences the likelihood of a death sentence. In the present study, we examined whether the likelihood of being sentenced to death is influenced by the degree to which a Black defendant is perceived to have a stereotypically Black appearance. Controlling for a wide array of factors, we found that in cases involving a White victim, the more stereotypically Black a defendant is perceived to be, the more likely that person is to be sentenced to death.

We already knew that both the race of the victim and the race of the defendant influence capital sentencing. Black defendants are executed more often than they should be in a system that pretends to treat all equally before the law and that ostensibly denies that racism should be allowed to determine judicial outcomes.

Now it seems that there’s a subgroup of African Americans who are treated even worse, namely those people who are perceived to have a stereotypically Black appearance (e.g., broad nose, thick lips, dark skin). People apparently associate those stereotypical physical traits with criminality. No surprise that this bias isn’t limited to capital cases:

Even with differences in defendants’ criminal histories statistically controlled, those defendants who possessed the most stereotypically Black facial features served up to 8 months longer in prison for felonies than defendants who possessed the least stereotypically Black features. (source)

Some more evidence is here. This form of bias has been called colorism, and it has effects way beyond the criminal justice system.

More posts in this series here.

Capital Punishment (44): The Retribution Argument Against Capital Punishment

Retribution is the last refuge of those seeking to justify capital punishment, given the failure of other arguments (deterrence, incapacitation etc.). Retribution is a punishment that fits the crime: the severity of the punishment should be proportionate to the severity of the crime. Intuitively, therefore, retribution should justify capital punishment for murder. Only death is a punishment that is as severe as murder. The Latin origin of the word “retribution” indicates that something should be given back or returned: someone “gives” death and hence death should be returned.

However, in theory, retribution does not necessarily mean that the punishment has to be strictly equivalent to the harm caused by the crime: some claim that retribution simply means that we must punish severe crimes more harshly than less severe crimes. Yet we see in practice that capital punishment as punishment for murder is defended on retributivist grounds.

Retributivists, ancient and modern, have always been lured by one or another form of lex talionis. (source)

There’s often an element of desert introduced in retributivist arguments. A murderer should be put to death because this punishment fits the crime, and because this punishment fits the crime, the murderer deserves to die.

So, given this “natural” tendency of retributivists to favor capital punishment for murder, how can it be possible to construct an argument based on retribution against capital punishment, as the title of this post suggest? Thom Brooks has made a highly interesting attempt here. It’s based on a decision by Judge Jed Rakoff ( in US v Quinones):

What DNA testing has proved, beyond cavil, is the remarkable degree of fallibility in the basic fact-finding processes on which we rely in criminal cases. In each of the 12 cases of DNA-exoneration of death row inmates referenced in Quinones, the defendant had been guilty by a unanimous jury that concluded there was proof of his guilt beyond a reasonable doubt; and in each of the 12 cases the conviction had been affirmed on appeal, and collateral challenges rejected, by numerous courts that had carefully scrutinized the evidence and manner of conviction. Yet, for all this alleged “due process”, the result in each and every one of these cases, was the conviction of an innocent person who, because of the death penalty, would shortly have been executed (-some came within days of being so-) were it not for the fortuitous development of a new scientific technique that happened to be applicable to their particular cases. (source)

This should even convince retributivists that capital punishment has to be rejected. Even if you adopt the moral rule that murderers deserve to die you, shouldn’t apply the death penalty in practice because you can’t be certain that a particular defendant is really guilty of the crime and hence deserves to die. And there’s no point arguing that the systematic use of DNA testing gives you this certainty: first, it’s not always possible to use DNA tests, because the crime has to be of such a type that DNA traces are potentially available, and even if they are potentially available they may not be actually available; and second, we don’t know if DNA testing is accurate enough and won’t be discredited in the future.

You could also argue that the same lack of certainty is the case for all types of crime, and that rejecting capital punishment because of a lack of certainty implies rejecting criminal punishment tout court. Not quite: all other types of punishment allow for the possibility to correct mistakes resulting from uncertainty. Capital punishment rules this out.

And there’s another kind of uncertainty that militates against capital punishment and that should convince retributivists to reject it. The desert of a criminal is usually based on more than mere physical evidence of his actions. Intent also plays a part. Take the case of someone who caused the death of someone else by his actions – and let’s assume that we are certain about this, e.g. we have DNA evidence and we know that no future scientific developments will cast doubt on this evidence – but did not intend to kill. Many would argue that he doesn’t deserve to die. However, intent is impossible to prove because it requires reading someone’s mind, and hence we can never be certain that someone intended to kill. A desert based argument for capital punishment is void if desert includes intent.

Capital Punishment (43): Some Facts About Decapitation

It used to be a common practice, but today only a handful of countries still execute criminals by way of beheading (Qatar, Saudi Arabia and perhaps one or two other countries).

Assuming that decapitation occurs in a “civilized” way and that it doesn’t take a number of blows or cuts to the neck in order to sever the head from the body – which, in practice, is not always a correct assumption: does the brain remain conscious for a few seconds after a clean and quick decapitation? There are many historical reports of decapitated heads showing facial movements or even the attempt to speak right after decapitation. It’s not clear what to make of this, since facial movements can just as well be spasms.

However, experiments with rats have shown brain activity after decapitation. Sure, there’s no way to be sure that this is true for the human brain as well – since “further scientific observation of human decapitation is unlikely”, in the words of Alan Bellows. Still, the rat experiments are suggestive:

[R]esearchers connected an EEG machine to the brains of rats, decapitated them and recorded the electrical activity in the brain after the event. [They] found that for about four seconds after being separated from the body, the rats’ brains continued to generate electrical activity between the 13 to 100-Hertz frequency band, which is associated with consciousness and cognition, defined as “a mental process that includes thinking”. (source)

The circulatory system delivers oxygen to the brain so that it can carry out its functions. When suddenly deprived of oxygen or blood after a clean and quick decapitation – or after several severe blows to the neck with a knife, sword or axe, before full decapitation – the brain’s function deteriorates rapidly, but perhaps not instantaneously. This would imply that individuals, after suffering a clean and quick decapitation, can still think, perceive, feel and suffer pain and anguish during a few horrible seconds after which the brain, which itself receives no trauma during decapitation, stops functioning because blood loss causes unconsciousness and death.

A related story is here. More on beheadings here. And on capital punishment here.

Capital Punishment (42): The Stupidity of Deterrent Statistics, Ctd.

The so-called deterrent effect is one of the main arguments in favor of capital punishment. I’ve argued many times before that the data we have don’t support the existence of this effect. Some of the data even suggest the possibility that instead of a deterrent effect, capital punishment has a brutalization effect (because it sends out the normative message that violent retaliation is the normal response to ill-treatment and that the sanctity of life is a naive moral ideal).

The following quote nicely summarizes the difficulty of proving the deterrent effect:

I would like to know how a statistical study, no matter how sophisticated, can possibly tell us the subjective motives for acts that were never taken and, moreover, how it can do so with the specificity of telling us approximately how many people did not do what they otherwise would have done under different circumstances. Where are these people? And, more importantly, how would we recognize one if we happened across him or her? (source)

Of course, people who want to disprove the deterrent effect also face this difficulty, but I assume we can agree that the burden of proof is on those who want to use the effect as an argument in favor of capital punishment. And that turns out to be a very heavy burden in this case.

Anyway, even if deterrence could be proven and even if we could establish with some certainty that every execution saves n lives – as some have argued, oblivious of the difficulties pointed out in the quote above – then we would still have good reasons to reject capital punishment.

More here.

Capital Punishment (41): The “Healing” Argument and the “Danger” Argument

Capital punishment is usually defended on the basis of a theory of deterrence or retribution, but there are some other, less common arguments as well. There’s for example the argument that capital punishment is necessary for “closure” and “healing” of the victim’s surviving family and friends. Capital punishment is therefore viewed as a therapy. Apart from the doubts that capital punishment can serve this purpose – what does closure and healing mean and do they necessarily require an execution? – there’s a strong case that it shouldn’t be used for this purpose even if it can be: it would amount to crude instrumentalization of the criminal, even more than in the case of deterrence. Moreover, there’s a problem with cause and effect: if people are told that they need an execution in order to accomplish closure, then perhaps they’ll start to believe there’s no other way.

Another argument in favor of capital punishment is based on guesses about the harm that would result from failing to use this type of punishment. If we don’t satisfy the public’s blood lust – or call it “punitive emotions” if you want – the public will seek to satisfy it in ways that we wouldn’t like (e.g. lynching). However, there’s again a problem with cause and effect in this argument: the justice system does not merely reflect opinion about appropriate punishment, but also shapes it. Far from reducing blood lust, capital punishment may instead promote it. This is the so-called brutalization effect.

The basis of blood lust is moral outrage, and such outrage – contrary to blood lust – is often completely justified. And it should be recognized, but it can be in ways that don’t involve executions.

More on capital punishment is here.

Capital Punishment (38): The Truth About the Deterrent Effect

If I didn’t manage to convince you of the stupidity of deterrent talk in my two previous posts (here and here), then neither will I manage today. Still, I’m a hopeless optimist by nature, so I’ll try anyway. A vital presupposition in the deterrence argument in favor of capital punishment (or any type of punishment by the way) is the minimally rational nature of criminals: if criminals don’t weigh the costs and benefits of actions before they undertake them, an extra cost as heavy as death won’t make any difference to their actions. And they don’t:

The tenet that harsher penalties could substantially reduce crime rates rests on the assumption that currently active criminals weigh the costs and benefits of their contemplated acts. Existing and proposed crime strategies exhibit this belief, as does a large and growing segment of the crime literature. This study examines the premise that criminals make informed and calculated decisions. The findings suggest that 76% of active criminals and 89% of the most violent criminals either perceive no risk of apprehension or are incognizant of the likely punishments for their crimes. (source)

It seems that criminals, like the rest of us, are seldom the cold, mechanical and calculating types. And the best thing about this: even if it was all wrong and capital punishment could deter, it would still be unacceptable for other reasons.

More about deterrence here and here.

Capital Punishment (36): Retribution

I understand the argument that people sentenced to death aren’t getting any worse than they’ve given the world. Still, I think that the state could and should be held to a slightly higher standard of behavior than that which we expect from people who are literally deemed worthy of being killed like animals. (source)

More on capital punishment and retribution.

Capital Punishment (35): The Cost

Taxpayers have spent more than $4 billion on capital punishment in California since it was reinstated in 1978, or about $308 million for each of the 13 executions carried out since then. (source)

Compared to other types of criminal punishment, that’s a lot:

A 2003 legislative audit in Kansas found that the estimated cost of a death penalty case was 70% more than the cost of a comparable non-death penalty case. Death penalty case costs were counted through to execution (median cost $1.26 million). Non-death penalty case costs were counted through to the end of incarceration (median cost $740,000). (source)

OK, you may say, but what if we just shoot the bastards immediately? Wouldn’t that drive down the cost? We could then avoid the lengthy appeals. Indeed, we could avoid the appeals, but the cost would not drop significantly:

The greatest costs associated with the death penalty occur prior to and during trial, not in post-conviction proceedings. Even if all post-conviction proceedings (appeals) were abolished, the death penalty would still be more expensive than alternative sentences. (source)

Not surprisingly, our current recession has had at least the benefit that some cash-strapped governments are reconsidering the death penalty. That is, until the economy recovers, I’m afraid.

Capital Punishment (34): Mere Signaling

It’s often assumed that capital punishment is about fighting crime, just retribution or desert, or perhaps about anger and revenge, but in reality it’s much more about signaling. And by signaling I don’t mean the signaling of threats to potential murderers so that they are deterred, or the signaling of the “just” nature of a society that takes an eye for an eye. Proponents of capital punishment, by expressing their support for it, signal their own moral rectitude. Their expression of support refers to high profile crime cases that are widely discussed in the media and that are likely to be familiar to friends, family and others to whom people want to signal. Signaling support for the death penalty in reference to such high profile cases makes the signal particularly strong and deep, partly because it’s so full of familiar and shockingly emotional detail.

Politicians who favor capital punishment and who keep the legal regime in place are equally focused on signaling. They signal that they care about the emotions of the victims of crimes and of the relatives of the victims, and at the same time they signal that they emotionally identify with those who care about the victims of crime. In other words, they signal that they feel connected to the large majority of humanity. And that kind of signal is vitally important for democratic politicians.

Opponents of capital punishment simply don’t have the same signaling power. For example, there’s no large constituency for signals about sympathy for criminals or for signals about anti-instrumentalization. Politicians don’t stand a lot to gain from such signals, and neither do citizens concerned about how others think of them. On the contrary, they risk signaling emotional indifference for the plight of victims and hence they risk lowering their moral standing.

This asymmetry in signaling power between proponents and opponents can explain the persistence of rational arguments in favor of capital punishment, even after they have been shown to be wrong or inconsistent with the facts. (That’s the case for the arguments based on the deterrent effect for instance – see here and here – but also for the arguments based on retribution which are hopelessly circular: a certain punishment is appropriate for a crime because that crime requires a certain punishment). Proponents of capital punishment obviously can’t justify it simply on the basis of emotional identification. They need a more rational story as a cover. And as long as this story can be used successfully in the signaling process, that will do, whether or not the story is factually or logically correct. That will do, because opponents who point to factual or logical failings in the story amplify the signaling of the proponents: by pointing to these failures, the opponents signal rationality and detachment rather than emotional connection, and they thereby make the case for the proponents.

This is counterintuitive, given that it’s most often the opponents of capital punishment who are accused of emotionality and a lack of toughness, but I think it’s the right conclusion.

Capital Punishment (33): It’s Not What You Do, But What You Do to Whom

In the U.S., and probably also in other countries that still use the death penalty, not all murders are alike. Ostensibly, the death penalty is the supreme punishment for the supreme crime, i.e. murder. But some cases of the supreme crime are more likely to result in the supreme punishment than others. For example, it’s well-known that a black person who has committed murder is more likely to be executed than a white person, even if the details of their crimes are very much alike.

It seems that the moralistic justification of capital punishment – that the worst of crimes should be met with the severest of punishments – is just talk, applicable in some cases but not in others. This inconsistency is incompatible with moral talk, since morality is precisely about general and blind rules. The inconsistency becomes even more clear when we consider that it’s not just the race of the perpetrator that makes it more or less likely that horror is answered with horror. People who murder whites are much more likely to be executed than those who murder blacks.

I don’t want to sound conspiratory, but it does seem like the death penalty is an instrument in the continued subjugation of blacks and the protection of whites.

On top of the race issue, there’s also a class issue:

A defendant is much more likely to be sentenced to death if he or she kills a “high-status” victim, according to new research by Scott Phillips, associate professor of sociology and criminology at the University of Denver (DU).

According to his research published in Law and Society Review, (43-4:807-837), the probability of being sentenced to death is much greater if a defendant kills a white or Hispanic victim who is married with a clean criminal record and a college degree, as opposed to a black or Asian victim who is single with a prior criminal record and no college degree.

“The concept of arbitrariness suggests that the relevant legal facts of a capital case cannot fully explain the outcome: irrelevant social facts also shape the ultimate state sanction” Phillips says. “In the capital of capital punishment, death is more apt to be sought and imposed on behalf of high status victims. Some victims matter more than others.”

Phillips research is based on 504 death penalty cases that occurred in Harris County, Texas between 1992 and 1999. (source, source)

More on capital punishment is here.

Capital Punishment (31): The Incapacitation Argument For Capital Punishment

Capital punishment is usually defended on the basis of a theory of deterrence or retribution, but another common argument is incapacitation: killing criminals guarantees that they cannot commit further crimes. It’s likely that this argument plays an important role in many decisions to impose capital punishment, since members of juries may fear, mistakenly, that life imprisonment without parole actually means something like “on average 10 years in prison” (see here).

The obvious counter-argument is that life imprisonment, when it really means “life”, is equally incapacitating. True, say the proponents of capital punishment, but criminals may kill when in prison. In particular, they may kill fellow inmates. OK, so let’s do a thought experiment. Imagine that we don’t use the death penalty for murder, but incarcerate murderers for life, together with only fellow murderers. The only killing they can do is of their fellow incarcerated murderers.

Would that kind of killing be objectionable to proponents of capital punishment? I think it shouldn’t be, since the victims of this kind of killing would also have been killed under a regime of capital punishment. Maybe opponents would object that this system doesn’t treat all murderers the same: some get killed, others not. However, I fail to see what difference it makes to a murderer if she is killed by fellow inmates rather than by the state, or if she is killed while others aren’t. She’ll be dead, and in no position to complain about others being still alive. (And don’t tell me murder by the state is preferable because it’s more “humane”). Moreover, our existing regimes of capital punishment don’t manage to kill all murderers either. And finally, non-murderers can also kill while in prison. Should we execute them preemptively?

For opponents of capital punishment, it does make a huge difference whether murderers are killed by the state or by their colleagues: murder by the state means the instrumentalization of human beings, whereas murders between inmates are regrettable and to be avoided, but not more or less than murders in general.

More on capital punishment here.

Capital Punishment (28): Extreme “Tinkering With the Machinery of Death” in the U.S.

The title of this blog post refers to a famous quote by former US Supreme Court Justice Harry A. Blackmun. It’s my belief that the U.S. Supreme Court, in its desire to both uphold capital punishment and simultaneously limit its scope, has maneuvered itself into an incoherent position. It has “tinkered with the machinery of death” to such an extent that the application of capital punishment in the U.S. should be viewed as a complete mess, even by those of us who don’t have an instinctive repulsion for capital punishment, who don’t make a philosophical or moral argument against it, and who don’t agree that there are so-called “systemic problems” in the application of capital punishment in the U.S. (as opposed to the moral problems of capital punishment per se), such as

  • the racist component
  • the discussions about non-cruel methods
  • the failure of legal representation
  • the extensive appeals procedures
  • the sadistic death row phenomenon
  • or the lack of deterrence.

(For irregular readers, I’m personally convinced that there are moral reasons not to apply the death penalty, and that these are sufficient reasons. I view both the systemic problems cited above and the inconsistent reasoning of the Supreme Court discussed below as supplementary reasons for those who are difficult to convince with moral reasons alone).

Here’s an overview of some of the contradictory judgments of the Supreme Court. There’s a tendency, among many supporters of the death penalty in the U.S., to extend its reach beyond homicide. (I believe that’s a natural tendency, especially for those counting on a deterrent effect. If the main objective of capital punishment is the deterrence of crime, then why stop at homicide? There are many other heinous crimes that could possible be reduced with an effective deterrent and if it can be argued – but I doubt it – that capital punishment is such an effective deterrent, then why shy away of it?).

In Coker v. Georgia, the Court had to decide whether the crime of rape of an adult woman warrants the penalty of death. The Court argued that it doesn’t, since rape does not mean taking a life. Again, in Enmund v. Florida (does a homicide accomplice who does not kill or attempt to kill deserve the death penalty?), the Court judged that capital punishment should not be a possible punishment for crimes that do not involve the death of another human being. (This is part of the doctrine of proportionality, see below).

And yet, in Kennedy v. Louisiana, the Court stated that crimes against the state, such as treason and espionage, but also terrorism and drug kingpins etc. may be deserving of death even if no loss of life was involved. I find this distinction highly arbitrary. From the point of view of an opponent of capital punishment such as me, it’s obviously good that the Court imposes some restrictions on the sentence, but doing so in this arbitrary way just serves to undermine the legitimacy of these restrictions and opens the door to future reversals.

Another restriction imposed by the Court is based on the degree of culpability of offenders and their capacity to evaluate and control their actions. In Thompson v. Oklahoma for instance, the Court examined the constitutionality of executing child offenders (under the age of 16). The Court decided that children are generally less culpable for their crimes because, compared to adults, they are

  • less able to judge the consequences of their actions
  • more emotional and less able to control their actions
  • less prone to “cold calculation” and therefore there is less reason to assume a deterrent effect.

Moreover, the Court assumed that offenses by the young represent a failure of society, school and the family:

youth crime as such is not exclusively the offender’s fault; offenses by the young also represent a failure of family, school, and the social system, which share responsibility for the development of America’s youth. (source)

Again, nice to see the Court limiting the scope of the death penalty, but why assume that adult criminals don’t also represent a failure of society? If young people offend because of failure of the educational system for instance, is it safe to assume that these causes magically disappear after a certain age? (Of course, I don’t assume that “society” causes all crime, but crime does, in certain cases, have causes beyond the decisions of the criminals). And are there really no adults who are relatively less able to judge the consequences of their actions and act in a non-emotional and calculated way?

Yes, says the Court, but at the same time it limits this category of adults in a somewhat arbitrary way to the mentally retarded (for example Atkins v. Virginia). I believe the reduced culpability of the mentally retarded is obviously a good thing, but why stop there? Aren’t there any “non-retards” who also can claim diminished culpability? And, anyway, where to put the border between the retarded and the rest? There’s always going to be a gray zone, and hence arbitrariness.

Furthermore, recent judgments of the Court tend towards undoing the restriction on capital punishment based on diminished culpability. Scalia for instance (dissenting in Atkins v. Virginia) claimed that culpability and deservedness depend not only on the mental capacity of the criminal but also on the depravity of the crime. One can read this as a justification of capital punishment even for children or the mentally retarded if their crime is depraved enough.

In Kennedy v. Louisiana, the Court also expressed contradictory views on deterrence. Deterrence has always been an important justification for the Court, but in Kennedy v. Louisiana the Court decided that in the case of child rapists, capital punishment would encourage rather than deter the crime. It claimed, correctly I think, that the death penalty for this crime could encourage non-reporting. A third party, for example the wife of the rapist, could decide not to report the offender for fear of capital punishment, which then leads to the continuation of the crime, and hence the failure of deterrence.

Again, a welcome restriction from the point of view of an abolitionist, but also a highly arbitrary one. The same non-reporting effect of the death penalty can occur in other types of crime. Moreover, the consideration of counter-deterrence effects in this case is very unusual for a Court that consistently ignores evidence against the deterrent effect.

Finally, the argument of proportionality cited above and used against capital punishment for crimes such as rape (see also Gregg v. Georgia) is a welcome limit, but it also is an argument that’s used very selectively and arbitrarily by the Court. In non-capital cases, the Court often refuses to consider the lack of proportionality as a reason to undo decisions of other courts. In Rummel v. Estelle for instance, the Court refused to see anything wrong with a sentence of life imprisonment for obtaining $120.75 by false pretences!

All these inconsistencies and arbitrary limits and restrictions in the Supreme Court’s handling of capital punishment have turned this sentence into a shambles. Many of us think it’s much worse than that, but a shambles may be a sufficient reason for others to review the practice.

Capital Punishment (26): The Probability of Capital Punishment in the U.S., by Race, Ctd.

Following up from a previous post: there are many things wrong with capital punishment in the U.S. (and with capital punishment as such), but the most obvious thing is the blatant racism of it all. A black person in the U.S. is almost 4 times more likely to be executed. Even if we assume that this higher probability of being executed correctly reflects a higher probability of being involved in crime that comes with capital punishment – and that’s something we shouldn’t assume, because it’s likely that there are injustices involved, e.g. inadequate legal representation and such – that shouldn’t put our minds at ease. We then still have to ask the question: why are blacks more likely to be involved in capital offences? Surely not because of their race. Something happens in society that leads to this unfair outcome.

Some would say that blacks in the U.S. have always been kept in their place, and that violence (including state violence) was and remains the best way to do that.

Here are some more numbers which show that it isn’t just the race of the defendant that matters but also the race of the victim, making it even more convincing that capital punishment is the new Jim Crow:

The probability of being sentenced to death is much greater if a defendant kills a white or Hispanic victim who is married with a clean criminal record and a college degree, as opposed to a black or Asian victim who is single with a prior criminal record and no college degree. … death is more apt to be sought and imposed on behalf of high status victims. Some victims matter more than others. (source, source)

So, capital punishment isn’t just racist, it’s also a means for the wealthy to keep the poor in their place. If that’s true, it’s depressing.

Capital Punishment (25): Non-Contingent Reasons to Abolish Capital Punishment

Many people would agree that there are what we could call contingent reasons to abolish capital punishment:

  • it’s practiced in such a way that it doesn’t meet basic standards of fairness and non-cruelty:
    • for instance the racial discrepancies in the system in the U.S.
    • the irreversibility in cases of miscarriages of justice
    • and the methods used in Saudi Arabia)
  • and it also doesn’t do what proponents say it’s supposed to do:
    • it fails to deter crime when compared to life imprisonment without possibility of parole – see here and here
    • and it fails to be retributive because in many cases it could be argued that murderers for instance deserve a fate much worse than death – capital punishment is often much less than an eye for an eye; however, few proponents of capital punishment are willing to take that road.

However, is there an argument for abolition that does not depend on contingent facts? Or, in other words, even if the punishment would be administered in a totally fair, correct and non-cruel way, and even if every execution would deter n murders, would we still have reasons to abolish it? To put it in yet another way: is there something inherent in capital punishment, in the very nature of it, that justifies its abolition?

I think there is. Before I tell you, however, I just want to say that it is in a sense futile because the contingent reasons for abolition are so strong that they are enough. I don’t think we can ever find a way to apply capital punishment without discrimination, without the risk of killing innocent people, and without any cruelty (even painless executions involve psychological cruelty, often for years on end). Hence it isn’t really necessary to make the case that even in perfect circumstances – which will never pertain – capital punishment isn’t justifiable.

But I’ll make the case anyway, because it reveals something that is philosophically interesting, even if it’s not practically useful. Imagine the perfect but in my view improbably if not impossible circumstances in which capital punishment is used as a fair, non-cruel and correct way of punishing certain criminals (correct in the sense of avoiding miscarriages of justice) and thereby deterring further crime. The intention of being retributive is almost impossible, even in ideal circumstances, as I have argued above, unless we give up traditional notions of cruelty which few proponents of capital punishment are willing to give up, so we can leave that aside.

So the focus is on deterrence. What does it mean to deter? It means that criminals are used as instruments to advance the collective interest. They are sacrificed for the greater good and a resource for the benefit of others (namely the intended future victims of future murderers). When the state instrumentalizes people in this way, it sends a clear message that this is a normal way of treating people, with possibly disastrous consequences. One of the most important lessons we have learned from Immanuel Kant and others is that we should never use fellow human beings as means to an end. An offender, even the worst possible offender, has a certain value as a human being, a certain dignity if you want, which should be respected and which cannot be canceled in the process of punishment. An offender shouldn’t be a mere tool to send warnings and intimidations to possible future offenders.

Now, you could say: how is this different from life imprisonment without parole? Isn’t that also meant to deter and hence open to the same criticism? No, it isn’t. Life imprisonment is intended to stop the criminal from doing further crime, and hence the criminal isn’t used to deter others. Furthermore, life imprisonment is intended to give the criminal the opportunity to make amends.

Capital Punishment (24): The Probability of Capital Punishment in the U.S., by Race

The U.S. population is about 300,000,000. Whites represent about 80%, or roughly 240,000,000. If you check the numbers of executions in the U.S., you’ll see that there were about 1,000 in the period from 1977 to 2005. 584 of those executions were of whites. That’s about 20 executions per year on average, meaning that whites have a chance of 1 in 12,000,000 of being executed.

There are about 40,000,000 African Americans, representing roughly 13 % of the U.S. population. 339 executions in the 1977-2005 period were of African Americans. That’s about 12 a year, meaning that blacks have a chance of 1 in 3,300,000 of being executed.

A black person in the U.S. is therefore almost 4 times more likely to be executed. Even if we assume that this higher probability of being executed correctly reflects a higher probability of being involved in crime that comes with capital punishment – and that’s something we shouldn’t assume, because it’s likely that there are injustices involved, e.g. inadequate legal representation and such – that shouldn’t put our minds at ease. We then still have to ask the question: why are blacks more likely to be involved in capital offences? Surely not because of their race. Something happens in society that leads to this outcome, and it’s likely that there are injustices involved: for example, inadequate education, poverty levels, discrimination etc.

Capital Punishment (23): The Truth About the Deterrent Effect

Some more data to support the claims expressed in this post, and this one. There’s a paper here presenting the results of a survey among leading criminologists regarding their opinion on the deterrent effect of capital punishment in the U.S.

The findings demonstrate an overwhelming consensus among these criminologists that the empirical research conducted on the deterrence question strongly supports the conclusion that the death penalty does not add deterrent effects to those already achieved by long imprisonment.

Of course, it’s not because experts believe something that this corresponds to the truth, but at least it’s ammunition that can be used against those proponents of the death penalty who like to claim that there is a “scientific consensus” in favor of the deterrent effect. There is no such thing. On the contrary, if there’s a consensus, it’s for the opposing view.

Another point: this kind of statistic on expert opinion, together with the data offered in the posts I linked to above, is much more convincing than the data comparing murder rates in capital punishment states and abolitionist states.

At first sight, this graph also undermines the deterrent argument, but it’s not as solid as it appears. It’s always important to control your data for other variables which can explain a difference. Maybe there are other reasons why states without the death penalty have lower murder rates, e.g. less poverty, more gun control etc. And maybe the murder rate in states with capital punishment would be even higher without capital punishment.

Capital Punishment (22): Deterrence

Many crimes, especially violent crimes and property crimes, are human rights violations. The fact that theft, assault, violent attack and murder are crimes in most if not all national legal systems, indicates a high degree of normative consensus on the importance of a subset of human rights, namely the right to life, the right to property and the right to physical security.

Moreover, there’s also a high degree of consensus across different national legal systems as to the best way to react to these rights violations and to stop them from happening in the future: isolate the perpetrators in prisons. We believe that this will prevent crime in three ways:

  • It stops the criminal from re-offending during the period of his/her isolation.
  • It stops the criminal from re-offending after the period of his/her isolation.
  • It stops other people from following his/her example.

The last two bullet points are what’s called “deterrence”. We tend to believe that this deterrence effect correlates with the severity of the punishment. More years in prison means more deterrence. More brutal punishments – such as capital punishment – means even more deterrence. The belief in this correlation between degree of deterrence and degree of punishment rests on the “rational actor hypothesis”: people will take only those actions that produce more benefits than costs. If the punishment for a certain type of crime imposes a much lower cost on the potential criminal than the benefits the result from the crime – for instance a few weeks in prison for a theft worth several millions of dollars – and if the chances of being caught are reasonably low, than a “rational actor” is likely to become a criminal. Deterrence is therefore a function not only of the severity of the punishment but also of the probably of getting caught.

There are three problems with deterrence understood like this.

Irrationality

Many people don’t fit the rational actor description. They don’t make cost-benefit analyses before engaging in actions, especially not when crime is concerned (and certainly not in cases of certain types of crimes, such as “crime passionnel”).

Reductio ad absurdum

There’s an element of “reductio ad absurdum” in deterrence: if you want to deter certain types of crimes, especially crimes with very high potential benefits, you have to impose very high costs. Hence you may find that your logic leads you into acceptance of very brutal punishments: e.g. very painful, prolonged and public types of capital punishment, the killing of the family and friends of criminals etc. The danger with all cost-benefit logic in human affairs – and with utilitarian philosophies in general – is that you wind up accepting the sacrifice of some for the larger benefit of society as a whole. Rawls called this the failure to take distinctions between persons seriously. Utilitarianism means

extending to society the principle of choice for one man, and then, to make this extension work, conflating all persons into one through the imaginative acts of the impartial sympathetic spectator. Utilitarianism does not take seriously the distinction between persons. John Rawls (source)

It seems that if you want to defend deterrence, you have to stop at some point and accept that there are limits to it. There are certain things you just can’t do to people, and no amount of deterrence or other benefits can justify doing these things.

Doesn’t work, unless…

It’s not beyond doubt that deterrence works, probably in part because of the first point. There’s solid evidence to the contrary in the case of capital punishment (see here). But also for crime in general and prison sentences there’s doubt:

Although long sentences are now common and the incarceration rate is five times what it was during most of the 20th century, the crime rate is still two and a half times the average of 1950-62. … most criminals are not the dispassionate rational actors who populate standard economic models. They are more like impulsive children, blinded by the temptation of immediate reward and largely untroubled by the possibility of delayed or uncertain punishment. (source)

Detention only seems to work when the odds of apprehension and punishment are very high.

The evidence suggests that when hardened criminals are reasonably sure that they will be caught and punished swiftly, even mild sanctions deter them. But not even the prospect of severe punishment is effective if offenders think they can get away with their crimes. (source)

This would seem to undermine the argument for capital punishment. Of the two elements that are believed to cause the deterrent effect, only the odds of getting caught seem to matter, not the severity of the punishment. Hence, capital punishment is useless. What counts is the odds of getting caught, not what happens when you’re caught. In general, people take costs that are relatively modest but immediate and certain much more seriously than higher costs that may or may not happen in the longterm.

Experimenters have found, for example, that even long-term alcoholics become much less likely to drink when they are required to receive a mild electric shock before drinking. Many of these same people were not deterred by their drinking’s devastating, but delayed, consequences for their careers and marriages. (source)

Capital Punishment (18): The Stupidity of Deterrent Statistics, Ctd.

Some more data on the supposed deterrent effect of capital punishment:

In 2003, there were [in the U.S.] 16,503 homicides (including nonnegligent manslaughter), but only 144 inmates were sentenced to death. Moreover, of the 3374 inmates on death row at the beginning of the year, only 65 were executed. Thus, not only did very few homicides lead to a death sentence, but the prospect of execution did not greatly affect the life expectancy of death row inmates. Indeed, Katz, Levitt, and Shustorovich have made this point quite directly, arguing that “the execution rate on death row is only twice the death rate from accidents and violence among all American men” and that the death rate on death row is plausibly lower than the death rate of violent criminals not on death row. As such they conclude that “it is hard to believe that in modern America the fear of execution would be a driving force in a rational criminal’s calculus.” John J. Donohue III and Justin Wolfers (source)

Proponents of capital punishment may answer this in two ways:

1. It proves their point: if all these data are correct, we need more capital punishment, and then the deterrent effect will kick in. Capital punishment as it is used now may indeed not deter significantly, but that’s no reason to abolish it; it’s a reason to step up the production of corpses.

But this reasoning leads to a reductio ad absurdum: if deterring crime is so important, and if we should do more to deter crime, then why don’t we change the execution methods: burn criminals alive at the stake. That should deter. But this, of course, brings home the point that we simply can’t do what we want to people in order to achieve some beneficial aggregate social good. If proponents of the death penalty shy away from this ultimate implication of the deterrent argument – and I think most of them will – then there’s no reason why opponents cannot have good reasons to reject killing criminals in other, less cruel ways. If propopents concede the point that there are certain things we can’t do to people, regardless of who they are or what they’ve done, then opponents can make the case that these “certain things” do not only include burning people alive but also killing them in a way which is less cruel but which nevertheless implies instrumentalizing people for the benefit of others with whom they have no relationship and who may not have been born yet. This instrumentalization is perhaps not physically cruel, but it is dehumanizing. People are no longer viewed as humans but as tools for the maximization of social wellbeing.

2. The calculating criminal is a myth. Murderers don’t look at death row statistics or other statistics mentioned in the quote above in order to decide whether or not to actually kill someone. They are deterred, not by numbers, but by the general vivid image of the horror of capital punishment. That may be true in the case of some types of murderers (e.g. the uneducated ones, or those motivated by passion), but not in the case of other types (some people may indeed look at the data and calculate that the risk of being killed for their crimes is so low that it’s ok to go ahead*).

But even if it is true and people don’t calculate, the “burning at the stake” implication still holds. If it’s the vivid nature of the punishment that counts as a deterrent, not the statistical likelihood of actually receiving this punishment (which is very low as a matter of fact), then let’s make it as “vivid” as possible and bring back the Middle Ages.

* I’m thinking of professional criminals for example.

Capital Punishment (17): What With Rehabilitation?

As I live – declares the Lord Yahweh – I do not take pleasure in the death of the wicked but in the conversion of the wicked who changes his ways and saves his life. Ezekiel 33:11 (source)

I have been prey to the deepest anxiety for fear your Highness might perhaps decree that they [the murderers of a Catholic priest] be sentenced to the utmost penalty of law, by suffering a punishment in proportion to their deeds. Therefore, in this letter, I beg you by the faith which you have in Christ and by the mercy of the same Lord Chirst, not to do this, not to let it be done under any circumstances. … we do not wish that the martyrdom of the servants of God should be avenged by similar suffering, as if by way of retaliation. … We do not object to wicked men being deprived of their freedom to do wrong, but we wish it to go just that far, so that, without losing their life or being maimed in any part of their body, they may be restrained by the law from their mad frenzy, guided into the way of peace and sanity, and assigned to some useful work to replace their criminal activities. It is true, this is called a penalty, who can fail to see that it should be called a benefit rather than a chastisement when violence and cruelty are held in check, but the remedy of repentance is not withheld? Augustine (source)

We know enough to say that this or that major criminal deserves hard labor for life. But we don’t know enough to decree that he be shorn of his future – in other words, of the chance we all have of making amends. Albert Camus (source)

Execution obviously removes any possibility of rehabilitation; rehabilitation both in the sense of restoring someone to the family of humanity after repentance and forgiveness, and in the sense of exoneration, of the undoing of a miscarriage of justice.

Capital Punishment (16): The Lesser Evil Argument for Capital Punishment

Let’s assume, arguendo, that capital punishment has a deterrent effect. (I stated here that this is far from obvious). It’s important for proponents of capital punishment that this effect exists, because other justifications for capital punishment are no longer widely accepted (e.g. justifications like, for example, those based on the conviction that murderers somehow deserve to be killed).

My point here is that, even if we assume that deterrence works and reduces the overall number of killings (and we shouldn’t assume this), it doesn’t justify capital punishment. I will argue this on the basis of one of my previous posts and on elements of this paper.

The expression “deterrence works” means that there are fewer overall killings in a society with capital punishment than there would have been without capital punishment. In other words, capital punishment deters more killings than it inflicts. The taking of a life by the state reduces the number of lives taken overall. This is what is called a “lesser evil argument”. Proponents of this kind of justification of capital punishment do not believe that executions are a good thing, or a moral thing to do. Executions take people’s lives, and are evil, but they are a lesser evil than not engaging in executions, because failing to execute would mean failing to deter more murders than the murders we commit by executing killers. If an execution saves more than one life (and there are studies claiming that every execution saves around 18 lives), than it is morally required. It may be immoral and evil, but less so than the failure to execute because it leads to a net gain in terms of numbers of lives saved compared to the failure to execute.

This lesser evil argument is what is called a consequentialist moral argument. Consequentialism is opposed to deontology. The latter states that some acts are intrinsically wrong and can’t be justified by the value of their beneficial consequences. Consequentialism, as the name suggests, claims that beneficial ends justify the means. Of course, neither position is ever defended as an absolute. No one, I guess, believes that a more beneficial overall outcome always justifies certain acts. I think it’s hard to find someone who accepts that it’s moral to kill someone if his or her organs can save the lives of two others. Saving two lives at the cost of one is an overall gain, but it seems that sacrificing someone in this manner just isn’t something you can do to a person. On the other hand, absolute deontologists are also a rare species. At some point, negative consequences have to be taken into account and to hell with the principle then.

The deterrence effect is said to justify capital punishment because of consequentialism: the overall result or consequences of capital punishment are better than the alternative, namely failing to inflict capital punishment. Whereas a deontologist would reject capital punishment regardless of the beneficial consequences, a consequentionalist will not. He will admit that executions are no better than private murders, and just as evil, but still acceptable and even morally necessary if it can be shown that they deter more murders than they inflict.

The problem with this argument isn’t so much that it’s based on dubious deterrence statistics, but that it supposes that state murder is the same as private murder, and that a lesser number of the former is acceptable and necessary if they make it possible to deter a higher number of the latter. Of course, state murder is worse than private murder, and, as a result, the consequentialist calculus of the lesser evil argument is corrupted. If a state murder is worse than a private murder, it’s no longer obvious that capital punishment is a lesser evil.

Why is state murder worse than private murder? As I stated in a previous post, capital punishment is the instrumentalization and dehumanization of people. Private murder of course also instrumentalizes and dehumanizes the victims because these victims are used for some kind of gain, but state murder pushes this instrumentalization to the extreme and makes it the norm of behavior, rather than a criminal exception. Individual criminals are used as instruments to advance the collective interest. They are sacrificed for the greater good and a resource for the benefit of others (namely the intended future victims of future murderers). And this is even made worse if we consider that the lesser evil argument seems to justify the execution of innocent people, as long as this deters a higher number of private murders.

When the state instrumentalizes people in this way, it sends a clear message that this is a normal way of treating people, with possibly disastrous consequences.

Capital Punishment (15): The Stupidity of Deterrent Statistics

It’s far from obvious that the death penalty has a deterrent effect. Some of the data even suggest the possibility that instead of a deterrent effect, capital punishment has a brutalization effect (because it sends out the normative message that violent retaliation is the normal response to ill-treatment and that the sanctity of life is a naive moral ideal). States with high numbers of executions tend to have high levels of violent crime and murder.

Anyway, let’s be generous and admit that there may or may not be a deterrent effect. According to me, as long as this question is open, deterrence can’t be used as a justification for capital punishment. Of course, proponents of capital punishment keep looking for the effect because it would be the only widely acceptable justification of this type of punishment. (I argued here that even if the deterrent effect exists, it doesn’t justify the death penalty because deterrence is inherently immoral).

One of the most silly “findings” I’ve ever seen is here. This “study” claims to show that every execution results in 18 fewer murders. However, the authors failed to note that, if this were true, and the U.S. would execute today all the approx. 3.300 inmates on death row, there would be no more murders in the U.S. (there are between 15.000 and 20.000 homicides in the U.S. annually). That can’t possibly be true. A nice study, I have to say.

(Pointed out to me by this paper).

Capital Punishment (12): Crime Prevention Through Fear

Capital punishment is just one of many types of punishment for criminal activity. The main purpose or function of all criminal punishment is prevention (some other functions are social recognition of a criminal act,  social condemnation, recognition of the victim, support for the victim, establishing the facts etc.).

Prevention through punishment

Prevention through punishment is the attempt to use punishment of a particular crime in order to prevent future crimes of the same type. Punishment therefore increases social welfare. It is believed that punishment can prevent future crimes in three ways:

  • incapacitation: by punishing a criminal, here or she is incapacitated (physically restrained or killed) and hence cannot commit any more crimes (this type of prevention is limited to a particular person being prevented from committing more crimes)
  • fear and deterrence: the example of a punishment will deter other people from committing a similar crime; another word for fear – terror – can be found in the word deterrence (this type of prevention, as the next one, covers potentially the whole of society)
  • education: by punishing a criminal, society receives a messages from an authoritative source that certain types of behavior are immoral (punishment is kind of an official reaffirmation of morality); the public spectacle of punishment therefore infuses society with morality and it is hoped that people will internalize this morality and act accordingly, so that future crimes and punishments become less ubiquitous.

Of these three ways in which punishment is believed to be able to prevent crime, only the second one figures prominently in discussions on capital punishment. Its success in deterring crime is, by many, believed to be the main justification of capital punishment (although the statistics aren’t clear about that). Obviously, incapacitation cannot justify capital punishment since life imprisonment incapacitates equally well. In this post, I will argue that there are practical and moral objections to the use of punishment as a deterrent (irrespective of the discussions on the possible success of this strategy), and that the same objections hold with respect to punishment as education. However, this doesn’t mean that I argue against punishment as such.

Deterrence

Deterrence is inherent in all types of criminal punishment, not just capital punishment. Punishment is intended to instill fear in other potential criminals. People are aware of the punishment for certain crimes, because the trial system is open and public, and this awareness leads them to make cost-benefit analyses. The threat of punishment for a crime creates a cost, a disincentive, that should outweigh the possible benefits of committing this crime. Proponents of capital punishment believe that only this type of punishment imposes a high enough cost to deter certain crimes.

There are several problems with this statement:

1. Rationality

Believers in deterrence assume that all or most criminals undertake a rational calculation of costs and benefits before committing their crime. That’s obviously not true. There are the crimes of passion, for example, which do not follow from such a calculation. And many types of criminals aren’t rational at all, or aren’t able to make the necessary evaluation of cost and benefit. Hence, many criminals are undeterrable. (Think for example also of the extreme case of the suicide terrorist). One should be careful taking a life when there may be no benefit in doing so.

2. Under-enforcement

It’s well known that many if not all laws suffer from under-enforcement. The chances of being arrested and convicted for any particular crime are less than 100%, and often much less. Criminals who do engage in rational analysis of costs and benefits, and who are therefore potentially deterrable, will take under-enforcement into account, and this will sharply reduce the effect on them of another person or even persons being punished. If a potential offender perceives the likelihood of punishment to be very low, then the deterrent effect of the severity or even cruelty of previous punishments for similar crimes is nullified.

3. Blindness to the causes of crime

Capital punishment, or any other form of punishment which focuses on deterrence as a means to prevent future crime, overlooks other, perhaps more fruitful ways of preventing crime. Addressing the underlying causes of crime, or people’s motivations to engage in crime, and working on the social conditions which foster criminality, may be more successful as a prevention strategy than merely relying on punishment, fear and unlikely cost-benefit considerations.

4. The immorality of deterrence

However, the strongest objection against deterrence, especially when it takes the form of capital punishment, it its immorality. One of the most important lessons we have learned from Immanuel Kant and others is that we should never use fellow human beings as means to an end. An offender, even the worst possible offender, has a certain value as a human being, a certain dignity if you want, which should be respected and which cannot be canceled in the process of punishment. An offender shouldn’t be a mere tool to send warnings and intimidations to possible future offenders.

Education

Punishment is said to achieve prevention of future crime because it is educational. It educates society about the wrongfulness or immorality of certain actions by doing certain things to offenders. And it thereby reinforces internalized morality and encourages law-abiding behavior. And, say the proponents of capital punishment, the message sent to society is stronger if the punishment is more severe. Punishment therefore not only applies and enforces rules and norms, but also creates them because it internalizes them, or better helps people to internalize them. However, objection number 4 which I leveled against deterrence is also applicable here. Education as a function of punishment also doesn’t take persons seriously, in the words of Rawls. It instrumentalizes offenders and uses them to send messages to society. And reducing people to a means is a kind of dehumanization.

And what about the victims?

It could be argued that all this puts too much importance on the offenders, and ignores the victims and their relatives and friends. On the contrary, I think. I take the preventive function of punishment very seriously (while at the same time pointing out other functions which also benefit victims or potential victims, see above). I just wanted to point out that deterrence isn’t necessarily very effective as a prevention tool (something which can explain the statistics cited above). We should therefore be careful when imposing harsh punishments on people while assuming that the harsher these punishments are, the more crime we can prevent. People just don’t do cost benefit analysis quite as often as we assume.

And I also wanted to point out some other problems with deterrence, problems not of a practical but of a moral nature. When we allow the justice system to instrumentalize people for the sake of deterrence, but also for the sake of education, we mirror the practices of many criminals, and therefore justify these practices. Criminals typically use other people as means, and violate a fundamental moral rule. When we allow the justice system to violate the same rule, and instrumentalize offenders, we legitimize this instrumentalization, and hence we will encourage criminal behavior rather than prevent it.