Tuesday, 9 February 2010

Capital punishment: the debate continues

Phil Dickens, over at his blog has typed out another one of his eloquent articles. This time it's a theoretical look at the death penalty. In particular, Phil responds to some points I made in my recent article on capital punishment. Phil writes heavily on the theory and frequently refers to works of authority in his writing, so a full reply would take a lengthy and committed response. Therefore, in the interests of light reading, I'll restrict myself to a few direct responses.

To follow the debate in full, please read my article, then Phil's article then the following reply. It may take a few moments but you will receive a balanced and credible argument both for and against the death penalty.

In one paragraph, Phil states (ignore the punctuation errors caused by my text editor):
We are, in condemning the perpetrator of a 'capital' crime, making a moral judgment. We are declaring the act committed, whether murder, rape, or some other action, to be wrong. For that moral judgment to hold up, it must apply in every similar situation. As Noam Chomsky states, 'one of the, maybe the most, elementary of moral principles is that of universality, that is, If something?s right for me, it's right for you; if it's wrong for you, it's wrong for me. Any moral code that is even worth looking at has that at its core somehow.' Thus, if the taking of human life in an offensive act is wrong, then it is always wrong. It is wrong if it is committed by a mugger with a knife, by a policeman with a gun, or by a doctor with a needle.

This is, in essence, a simple statement of moral absolutism. Whilst it may sound sweet, it is neither practical or true. To suggest a murder is an equally condemnable crime in any circumstances is to ignore human nature. Do we really believe that a man who shoots a burglar who has just told him he will rape his wife is equal in his sin to a man who gets drunk, walks up to someone in the street and kicks them to death? Do we really believe that soldier at war who takes a shot at, say, Kim Jong Il is equally murderous as a child killer?

Society always has and always will take circumstances into account when considering crimes. Indeed, Phil appears to acknowledge his own paradox in his next paragraph:

"I have used the word ?offensive? as a qualifier because this reflects my own judgment. I am not a moral absolutist and as such can envision situations where taking a life may be necessary or even right. For example, acting in self-defence, it may be necessary to take the life of an aggressor who would otherwise take yours. Or ending somebody?s life may be an act of mercy and the only alternative to endless agony and physical or mental decline."

Unfortunately for Phil, this appears to weaken his own argument. Phil goes on to state:

"There are those who will argue that judicial execution is an act of defence, as it prevents the person against whom it is enacted from harming anybody ever again. However, this is a non-sequitur."

Actually it is not a non-sequitur at all. A non-sequitur is an argument where the premise is not logical to the conclusion or vice versa. Neither is the case here, though in fairness to Phil he probably means that the argument is not honest, rather than not logical.

Returning to the article:

"The death penalty is not enacted to defend against potential future offences, but as a punishment for an offence already committed. It is a retributive act, and so cannot be classed as defensive. If an individual, taken by a moment of madness, killed someone upon discovering their guilt in the death of a loved one, we may be able to justify or explain it as a crime of passion. However, unless this revelation came in the midst of a direct and immediate threat (to put it crudely, ?I killed your daughter and now I?ll kill you?), the killing is not a defensive one."

Phil has a very valid point here. We can't honestly argue that vengeance for society takes precedence over prevention of repeat crimes when the death penalty is invoked. However, this does not change the fact that the statistics show beyound reasonable doubt that murders are committed by criminals who have been released from prison after a serious offence. Therefore, capital punishment does help to keep society safer and prevent murder. That's a solid fact. Let's also remember that while judicial process should be as free from emotion a possible, one side effect of capital punishment is that it brings some level of comfort and closure to relatives and loved ones of any victims.

Phil again, this time discussing the issue of the death penalty being barbaric:

 "The decision-making process he [the anti-politician] is advocating is not barbaric at all, but unique to more developed societies. However, it should be pointed out that people do not think execution barbaric because of how people reach the decision to carry it out. The argument for it being barbaric is that it is an act of vengeance masking itself as justice, often based on a sentiment (?an eye for an eye?) that originated in the dark ages."

These points may seem valid at a first read but consider further. Is a trial by jury really an 'eye for an eye'? Juries are there to consider prosecution and defence. They will ponder the circumstances of the crime, any defence pleas such as insanity or retardation (a common defence plea in Texas, and no that is not a bad joke, it's true) and anything else presented at the trial. The jury will then consider if the criminal has committed murder in legal terms. It is not simply a case of 'you killed someone so we can kill you'. It is a slow, drawn out and painstaking process, the exact opposite of the anger fueled response Phil is suggesting we invoke.

Phil frequently returns to the idea that the death penalty argument is weakened by the fact that it could never protect against 'crimes of passion', such as the man who grabs his knife and stabs the man he's just caught in bed with his wife. But crimes of passion, by their very definition, are never going to represent the majority of serious crimes.  Such events are random by nature. In any case, in cases where there is provocation and/or little intent of a serious crime, surely most juries would not argue for the death sentence?

The final point Phil tackles is the one most difficult for both pro and anti-capital punishment sides. It's the issue of deterrent, or lack thereof.

I already made my case for the statistical evidence about a deterrent in my article but Phil concludes:

"The reason it is so hard to find a correlation between the use of the death penalty as a punishment and the murder rate is because there isn?t one."

Actually the true reason for the difficulty in establishing evidence of a deterrent is more complicated. The first reason is the use of a logical fallacy: negative proof.

Negative proof is a simple concept yet it is so often overlooked by my students and by left wingers in general. It works like this: I cannot show you that Santa Claus does not exist. Sure, I can show you the overwhelming argument that it would be impossible for him to exist, but I can't actually find any solid way to show that he is definitely not real. Likewise, I can't prove to you that stars in the night sky are not made of cheese, I can show you all the evidence that they are made of gas, but I cannot specifically disprove the cheese theory.

These silly examples make a valid point: we cannot prove something could of happened but didn't. How could we do so? A door to door survey asking "Have you ever decided not to commit a serious crime because you were scared of the punishment?"? Perhaps we could hold a walk in centre for people to tell us: "I was planning to rob a Bank and shoot someone but I changed my mind when I thought about the electric chair"? There simply is no way to monitor and record a potential criminal's change of mind.

The second problem with establishing a deterrent in capital punishment is the sheer number of variables in the equation. Imagine that we have a scientific experiment where doctors feed apples to monkeys every day to see if it helps them grow. It would be fairly easy to do this, provided we had a control group and no other variables. At the end of the test, doctors could compare growth charts for the two groups. With a big enough sample group, it would be easy to see the results and suggest if there is any evidence that apples spurt growth (though of course there would need to be lots of repeat tests).

But imagine if the doctors did not simply have the apple group and the non-apple group, but instead had hundreds of different groups with hundreds of variables. Some groups ate ten things a day, some groups ate just apples but then went outside to exercise, the next group ate apples and did no exercise. The next group ate green apples and the next group after that ate green and red apples...and so on.

The point here is, of course, that it would then become very hard for scientists to see what, if anything, affected the growth of all the different monkey groups in the experiment. There would be too many factors that could have influenced the monkey's growth patterns.

In our society today, trying to establish the efficacy of the death penalty as a deterrent would be almost as difficult as the task of the doctors in our second example. The variables at play in our society include population, changes in culture and media, changes in demographics, wealth, diet (yes, diet affects behaviour in many ways) and so many others.

So what can we hope to establish, well aside from the limited but crucial statistical evidence we can examine as per my first article? Well, we must must rely on common sense. Would you consider robbing a bank if you knew the worst possible consequence was a day in jail? Now would you still rob that bank if you knew the worst possible penalty was the electric chair? Not a hard decision is it? You weigh up the potential benefits against the possible consequences. This is human nature and despite Phil's argument that it is not realistic, it is. Many serious crimes such as assassinations, kidnapping and bank robberies require planing and forethought. They must include consideration of the potential outcomes and obstructions, or they would never be carried out.

Science supports us here, too. Behaviorism is a field of psychology that studies how behaviour of a species can be altered and conditioned. Numerous studies have shown that human behaviour can be modified by a consideration of the punishment involved for committing an act.

The risk of a wrongful conviction in capital punishment is a real concern. However, such evidence is almost non-existent in modern cases. Phil rightly mentions a case in Australia involving possibly invalid DNA evidence for some crimes. However, the chances of such evidence being faulty and a jury making a wrong decision and the court trial going the wrong way remain minuscule. There is no more sense in denying the death penalty because of this risk than there is of stopping everyone from driving because of the danger of a driving accident. We must be extremely vigilant and maintain the integrity and transparency of our judicial system and justice should follow its path.

Before I stop, I must finally point out that Phil is quite right to stress that arguments from emotion are not good arguments, but it is also true that some level of emotion nd empathy make us human, and help us to decide what is right. While it may be bad practise to let anger decide the punishment of a convicted ad guilty thug who kicks an old lady to death, I don't believe it is wrong to let us imagine her terror and sense of helplessness she must have felt in her last moments when we consider if the punishment should be thirty years in prison, or execution.

So thank you to Phil for another intriguing and well written article. The argument over the death penalty is likely to rumble on for a long time. I only hope that it is restored in the UK and saves lives in the process.

1 comment:

  1. I wish I'd come across this article sooner. Ironically, it was re-reading my own article on this subject that brought me back here.

    I may get around to responding properly to this article, well-written and reasoned as it is, at some point.

    Here, I'd just like to pick up on one thing;

    "To suggest a murder is an equally condemnable crime in any circumstances is to ignore human nature. Do we really believe that a man who shoots a burglar who has just told him he will rape his wife is equal in his sin to a man who gets drunk, walks up to someone in the street and kicks them to death?"

    As you've noted yourself, I've qualified my point with the word "offensive." The man who shoots the aggressive burglar commits an act of self-defence, the man who kicks a stranger to death without provocation commits an act of murder.

    Moral absolutism and moral universalism are not the same thing. Absolutism maintains that the act has the same level of right or wrong attached to it regardless of circumstances. Universalism holds that right or wrong needs to be determined by context rather than outcome (i.e. the distinction between offensive and defensive), but that the distinction is held up by the same criteria in all cases.

    As such, a premeditated act by the state should carry the same moral weight as an identical premeditated act by the individual.