Philosophy 220

1. Philosophy 220 The Death Penalty Reiman, and Liebman et. al.

2. Reiman, “Civilization, Safety and Deterrence” • Reiman focuses his discussion on retentionists like van den Haag who, though accepting that there is no evidence for a special deterrent effect (a deterrent effect independent of and superior to that offered by other serious forms of punishment) for the death penalty, insist on the intuitive obviousness of such an effect, predicated on the general, human fear of death. • It is just common sense to believe this, van den Haag insists. • As Reiman points out, there are many conclusions common sense recommends to us that turn out to be false, and Reiman argues that van den Haag’s conclusion about the deterrent effects of the death penalty is one of these.

3. Fear and Likelihood • The common sense argument relies on the idea that people will avoid what they fear. Even assuming the truth of this idea, it doesn’t seem sufficient to authorize a conclusion about a special deterrent effect for capital punishment. • Let’s assume that we would be deterred from acting because it might lead to our death. How would the situation differ if we knew that the same or greater likelihood existed that we would be jailed for life? • If, on the other hand, the latter possibility seems too unlikely to fear, wouldn’t that also be the case for a death sentence? • We face the risk of death every time we drive, but that risk typically doesn’t deter us from driving (even though, at ~30,000 automobile fatalities a year, such a death is much likelier than either sentence).

4. Where is the real risk? • For violent criminals, capital punishment is not the real risk. • 500 to 700 criminals are killed by the police every year (2012 = 587). • The number of privately held guns in the U.S. far exceeds the number of households in the U.S.. • Why would someone who is undeterred by all of these guns be deterred by the death penalty?

5. The Symbolic Argument (pt. 2) • Reiman notes that van den Haag employs a symbolic argument of his own when he insists that one component of a special deterrent effect for the death penalty is the lesson it teaches to society as a whole. • Reiman turns this claim around, noting first that centuries of capital punishment have obviously not taught the lesson and, second, insisting that the civilizing message of abolition would itself be potentially deterring, not through fear, but through an increase in mutual respect. • This is obviously no less speculative than van den Haag’s claim. However, if there is a risk to innocent lives on either side, the abolitionist position at least avoids the risk of mistakenly executing innocent persons.

6. Unintended Consequences • If we follow the logic of van den Haag’s argument to its conclusion, it leads us to a position that seems indefensible. • We must assume that if one punishment is more feared than another, it will deter criminals that are not deterred by a less fearful punishment. • Van den Haag's argument implies that we should institute death by torture (the rack, drawing and quartering, etc.) if it is a more fearful, and thus deterring, punishment than mere execution. • So, either we should abolish the death penalty or we should reinstate the variety of horrifying execution methods developed in the past.

7. Liebman, et. al., "Error Rates" • In this report from 2000, the authors review all of the capital sentences handed down in the U.S. from 1973-1995 with the aim of evaluating the “overall success rate” of this sentencing. • A “success” would be a sentence that withstood judicial review at both the state and Federal levels. • What they found is that the success rate is remarkably low, and that in fact, a massive number of these sentences are eventually overturned due to serious error by the sentencing courts.

8. Findings • The central findings of the study are listed beginning on p. 497. • Notable among them are: • 41% error rate determined by state courts of appeal. • 40% error rate determined by Habeas Corpus review done by Federal Courts. • Overall error rate for the entire system during these years was an astounding 68%. • This is not getting better. The rates of reversible error have been fairly constant over the period of the study.

9. Implications • DP is not worth it. Time and time again retentionists have tried to address the problems highlighted by the study without appreciably decreasing the error rate. • This is bad for victim's families, who have to go through the long agony of a trial and appeal process without the closure of a final and secure sentence. • It's bad for the system, which spends large amounts of its precious and limited resources in what is frequently a fruitless effort. • It's bad for the society, whose confidence in the judicial system is constantly being undermined by these repeated failures of justice. • We wouldn’t tolerate anything like this error rate in any other situation, we should not tolerate it here. The authors think we should abolish DP.