Ernest van den haag on deterrence and the death penalty

Running head: USE OF CAPITAL PUNISHMENT 1

USE OF CAPITAL PUNISHMENT 10

The Ethics of Capital Punishment

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PHI103: Informal Logic

The topic of capital punishment is a contentious one for the politicians and citizens of our nation because it involves a permanent solution for a distressing topic—death. In most every society, life is cherished. In the United States of America, life is considered so valuable that it is listed as an “unalienable right” right in our nation’s Declaration of Independence (Jefferson, 1776). As seen by the recent heated disagreements between the Justices of the United States Supreme Court, the issue of capital punishment is a controversial one even at the highest level of our court system (Feldman, 2015). This paper will present a logical argument on one side of that debate, consider objections from the other side, and ultimately defend the position that the use of capital punishment is wrong.

My argument for this thesis is as follows:

P1: If capital punishment does not deter murder, is not administered without discrimination, fails to ensure innocent people are not executed, and does not cost taxpayers more than the sentence of life in prison without parole—then capital punishment should not be used for those convicted of the crime of murder.

P2: Expert criminologists agree that capital punishment has no greater effect on deterring criminals than long-term incarceration.

P3: Evidence shows the current system of capital punishment to be discriminatory.

P4: Innocent people have been sentenced to death.

P5: Data proves that capital punishment costs taxpayers more than the sentence of life without the possibility of parole.

Conclusion: Therefore, capital punishment should not be used for those convicted of the crime of murder.

This argument is inductive, as it uses statistical data and expert opinion as evidence of its strength and each premise adds to the probability of the conclusion being correct (Hardy, J., Foster, C., & Zúñiga y Postigo, G., 2015).

My first premise calls for specific criteria, which are addressed by each of the subsequent premises, to be met in order for the conclusion to be correct. This premise is designed to set the course for the argument by creating boundaries that will assist the argument in maintaining a sharper focus.

The second premise discusses one of the most common arguments in favor of the use of capital punishment—that it deters potential capital criminals. This premise explains why the deterrent argument used by those in favor of capital punishment is not a strong one, as statistical data and expert opinion show the deterrent argument to be weak. For example, the majority opinion of criminologists supports the conclusion that capital punishment has no greater effect on deterring criminals than long-term incarceration (Lacock, T. I., & Radelet, M. I., 2009). In another study, experts in the field of criminal behavior— authorities were surveyed with the consensuses being that the capital punishment does not discourage homicide. Over eighty percent of the authorities polled believe that the existing investigation does not confirm the deterrence rationalization. Also, over seventy-five percent do not consider that raising the number of executions or lowering the time incarcerated before execution would create a widespread deterrent effect (Radelet, M. L., & Akers, R., 1996). In another study, researchers who surveyed police homicides concluded that there was no “consistent evidence that capital punishment influenced police killings” (Bailey, W. C., & Peterson, R. D., 1994).

To expound on the third premise, the application of capital punishment is discriminatory because the capital sentencing process does not overcome the subconscious and deep-seated biases and misconceptions most people have. This premise is defensible by examining the demographics of executions in the thirty-nine years since the Supreme Court's ruling in Gregg v. Georgia. The ruling states:

...capital punishment does not violate the Eighth or Fourteenth Amendments of the United States Constitution provided it is set forth in a carefully drafted statute that ensures the sentencing authority has adequate information and guidance in reaching its decision (FindLaw. 1976).

In analyzing the demographical data, it is clear that our system of capital sentencing does not accommodate the implicit biases found in the subconscious of the population. Implicit bias refers to the viewpoints or stereotypes that affect our understandings and decisions in an unconscious manner. These biases, which include both positive and negative evaluations, are triggered involuntarily and without an individual’s cognizance or deliberate control (Staats, C., 2014). Bias occurs at many stages of a capital trial, from the prosecutor’s discretion to try a case as a capital offense, to witness’ testimonies at trial, jury selection, and the individual biases of those participating in the conviction (Song, S., 2014).

The following data is from the American Civil Liberties Union and supports the assertion that discrimination affects decisions made in capital punishment cases:

The race of the defendant and victim has been shown to have a decisive and inexcusable part in determining who receives capital punishment in America. Studies show that people of color account for an uneven percentage of executions since 1976 and of the people currently awaiting execution. A cessation on capital punishment is essential in order to address the obvious prejudice in our use of capital punishment (2015).

Additionally, according to the United States Government Accountability Office, a synthesis of surveys and studies indicates racial disparities in capital sentencing. This report stated that race of the victim prejudiced the probability of being charged with capital murder or receiving the capital punishment. In other words, those who murdered whites would be more liable to have a capital punishment sentence than those who murdered minorities (1990, February 26). Here are a few more recent studies that confirm cases involving African-Americans are handled more severely as defendants, and their lives rendered less important as victims:

• A report backed by the American Bar Association in 2007 determined that one-third of African-American’s convicted of a capital crime and sentenced to death in Philadelphia would have been sentenced to life incarceration had they not been African-American.

• In January 2003, the University of Maryland’s study established that race and geography are key factors in capital judgments. The report showed that prosecutors are apt to seek a death sentence when the race of the victim is Caucasian and are less likely to seek a death sentence when the victim is African-American.

• In 2007, Yale University School of Law study of capital punishment sentences in Connecticut exposed the fact that African-American defendants are condemned to death at three times the rate of white perpetrators in cases where the victims are Caucasian. Moreover, those who murder Caucasian are treated more severely than people who murder minorities, when it comes to deciding what charges to bring (Amnesty International USA., 2015).

The fourth premise, that innocent people have been put to death via capital punishment is defensible by a recent study published in Proceedings of the National Academy of Sciences, and reported in the Newsweek. This study shows that recent data supports that one in 25 sentenced to death in the U.S. is innocent (Levy, 2014).

While there is no ways to calculate how many of the one thousand plus people executed since the reinstatement of capital punishment in 1976 was, in fact, innocent, more studies prove that innocent people are currently on death row, awaiting execution. One such study indicates that nearly four percent of our death penalty sentences are because of unjust verdicts. This translates to meaning that potentially around 120 of the approximately 3,000 inmates on death row are not guilty of the crimes for which they have been convicted(Drehle, 2014).

The fifth premise addresses the fiscal soundness of capital punishment. Because the United States Constitution includes an extensive and multifaceted judicial process for capital cases to ensure that guiltless persons are not executed, the death penalty is more costly for taxpayers than life in prison without the possibility of parole (Phillips Erb, K., 2014, May 1).

Replacing the capital punishment with the sentence of life without the possibility of parole would cost taxpayers millions less while still ensuring public safety. It also eliminates the risk of executing an innocent person. The money saved by getting rid of capital punishment could then be used for the public good.

Because this issue bears a high degree of controversy, it is important to consider the strongest arguments on the other side. One of the most often used arguments for the use of capital punishment is its deterrent effect. Support for this premise is found in the works of the late Ernest van den Haag. Van den Haag was a well-known sociologist Professor of Jurisprudence and Public Policy at Fordham University. In his 1986 Harvard Law Review Association piece, Van den Haag explained his support for the deterrent argument by saying, “We threaten punishments in order to deter crime. We impose them not only to make the threats credible but also as retribution (justice) for the crimes that were not deterred. Threats and punishments are necessary to deter and deterrence is a sufficient practical justification for them” (Van den Haag, 1986).

I response to this objection, it is important to consider the age of Van der Haag’s assessment and to take into account the many, and more recent, experts who have proven Van der Haag’s opinions to be weak in the face of logic, as presented earlier in this paper. Additionally, Van der Haag’s own words point to the fact that he realized the deterrent argument to be weak. In his Defense of Capital Punishment, he writes, “Despite much recent work, there has been no conclusive statistical demonstration that the death penalty is a better deterrent than are alternative punishments” and goes on to state that he would, “favor retention of the death penalty as retribution even if it were shown that the threat of execution could not deter prospective murderers not already deterred by the threat of imprisonment” (1986).

Other objections include the statement that a person no longer living is unable to commit a crime. This premise can be made stronger by adding that persons sentenced to life in prison without the possibility of parole could continue to murder while incarcerated. According to recent data, incarceration does not categorically prevent future murders. A report from the United States Department of Justice shows that the rate of homicides in state prisons rose 24%, in 2011 (Noonan, & Ginder, 2014). Yet, this objection is not strong because it neglects to address the possibility of rehabilitation

Opponents to my argument may also disagree with the premise that capital punishment is discriminatory by pointing to the impartial nature of the law. The statement that every person in the United States receives the same rights and responsibilities according to the United States Constitution is true in theory. Also, there are additional provisions for persons accused of capital offenses designed to mitigate error. These provisions are found in the Eighth Amendment, which demands increased reliability of the process by which capital punishment may be imposed. These additional safeguards are further identified by several decisions of the Supreme Court. Examples of these Supreme Court rulings can be seen in Herrera v. Collins, 506 U.S. 390 (1993) McKoy v. North Carolina, 494 U. S. 433 (1990); Eddings v. Oklahoma, 455 U. S. 104 (1982); and Lockett v. Ohio, 438 U. S. 586, 604 (1978) where the Supreme Court expounded on the increased reliability of evidence (Justia U.S. Supreme Court Center, 2015). However, even with the laws and provisions in place, it is irrefutable that these written laws cannot negate the implicit biases found in the subconscious of the population.

There are many important facets of this critical debate that have not been addressed, such as the rights of the family members homicide victims and their need for justice or vengeance or the mental health needs of the perpetrators of capital crimes. This paper, however, has made an inductively strong case for its conclusion that capital punishment does not deter murder, is not administered without discrimination, fails to ensure innocent people are not executed, and is not fiscally sound. Therefore, should not be used as a punishment.

References

American Civil Liberties Union. (2015). Race and the Death penalty. Retrieved from https://www.aclu.org/race-and-death-penalty

Amnesty International USA. (2015). Death penalty and race. Retrieved from http://www.amnestyusa.org/our-work/issues/death-penalty/us-death-penalty-facts/death-penalty-and-race

Bailey, W. C., & Peterson, R. D. (1994). Murder, capital punishment, and deterrence: a review of the evidence and an examination of police killings. Journal of Social Issues, 50(2), 53-74. doi:10.1111/j.1540-4560.1994.tb02410.x

Dieter, R. C. (1993, April). Americans embrace alternatives to the death penalty - National Criminal Justice Reference Service. Retrieved from https://www.ncjrs.gov/pdffiles1/Photocopy/142881NCJRS.pdf

Drehle, D. V. (2014, April 28). US death penalty wrongful convictions executions. Retrieved from http://time.com/79572/more-innocent-people-on-death-row-than-estimated-study/

Feldman, N. (2015, October 7). For justices, death penalty cases are personal - Bloomberg View. Retrieved from http://www.bloombergview.com/articles/2015-10-07/for-justices-death-penalty-cases-are-personal

FindLaw. (1976). Gregg v Georgia. Retrieved from http://caselaw.findlaw.com/us-supreme-court/428/153.html

Hardy, J., Foster, C., & Zúñiga y Postigo, G. (2015). With good reason: A guide to critical thinking [Electronic version]. Retrieved from https://content.ashford.edu/

Jefferson, T. (1776, July 4). Declaration of independence text transcript. Retrieved from http://www.archives.gov/exhibits/charters/declaration_transcript.html

Justia U.S. Supreme Court Center. (2015). Herrera v. Collins : 506 U.S. 390 (1993). Retrieved from https://supreme.justia.com/cases/federal/us/506/390/case.html

Lacock, T. I., & Radelet, M. L. (2009). Do executions lower homicide rates? The views of leading criminologists. The Journal of Criminal Law and Criminology. Retrieved from http://www.deathpenalty.org/downloads/RadeletDeterrenceStudy2009.pdf

Levy, P. (2014, April 28). One in 25 sentenced to death in the U.S. is innocent, study claims. Retrieved from http://www.newsweek.com/one-25-executed-us-innocent-study-claims-248889

Noonan, M. E., & Ginder, S. (2014, October 14). Mortality in local jails and state prisons, 2000–2012. Retrieved from http://www.bjs.gov/content/pub/pdf/mljsp0012st.pdf

Phillips Erb, K. (2014, May 1). Considering the death penalty: Your tax dollars at work. Retrieved from http://www.forbes.com/sites/kellyphillipserb/2014/05/01/considering-the-death-penalty-your-tax-dollars-at-work/

Radelet, M., & Akers, R. (1996). Deterrence and the death penalty: the views of the experts. Journal of Criminal Law & Criminology, 87(1), 1-16.

Staats, C. (2014). State of science: Implicit bias review. Retrieved from http://kirwaninstitute.osu.edu/my-product/2014-state-of-science-implicit-bias-review/

Song, S. (2014). Race consciousness in imposing the death penalty. Richmond Journal of Law, 17(4), 739-788. Retrieved from http://rjolpi.richmond.edu/archive/Song_Formatted.pdf

Van den Haag, E. (1986). Ernest van den Haag/legal scholar. Retrieved from http://www.pbs.org/wgbh/pages/frontline/angel/procon/haagarticle.html