The Death Penalty: OC Register Response

The death penalty is up for vote here in CA. I've seen some otherwise solid Catholics in favor of abolishing it. I am for maintaining. I recently came across this article from a friend on my Facebook newsfeed, and I suppose I can respond to it here. 

There are two kinds of arguments given, one very short and flimsy, and the other numerous and worth talking about. Firstly, when the article asks, "Why eliminate the death penalty?" it only gives a one sentence answer, which is, "Some believe that it is wrong for the state to kill people." That's it, and that is the only appeal to some kind of principled objection to the death penalty. It doesn't expand on why some people believe it is wrong for the state to kill people, and it doesn't extend any further arguments of principle. Secondly, the next question the article asks is, "But why should someone who believes in the morality of capital punishment vote to [keep it legal]?" Why not just deal with that premise head on? Maybe because the argument has been rehashed so many times, and in the interest of keeping a news article short, they just decided to go around that. 

The arguments given to those who believe in capital punishment are mainly about the consequences, and not so much about the principle. But what many people who argue with no regard to principle forget is that many arguments based on consequence will have little sway over someone who sticks to principles, because that is what principles are, something you hold on to despite the consequences. 

The first argument given says, "There is too great a risk of executing an innocent person. Any human system will make mistakes and the reality is that innocent people are wrongly convicted." This is why principles are important. People who are in favor of maintaining the death penalty have the principle that punishment itself is not wrong, and in some cases, morally obligatory. Capital punishment is a type of punishment, obviously. So, in this argument, let us replace the word "execute" with "punishment". It would read, "There is too great of a risk of punishing an innocent person. Any human system will make mistakes and the reality is that innocent people are wrongly convicted." I think that last word is significant. "Convicted." Wouldn't it be better to say "executed"? We aren't so much worried about convictions than we are for one particular punishment for a small amount of convictions. But, it makes my point much more clear, that this argument is an argument against not just capital punishment, but just punishment at all. I'm sure the author didn't intend that, but the logic is there, and the slip of pen might betray that. 

Another point to bring up about executing an innocent person is to ask why that person was executed. There may be a few different reasons. The first is that there was no due process of law. The second is that someone, be it a judge or jury, knew a person was innocent, but condemned him anyways (think of Harper Lee's novel To Kill A Mocking Bird). And the third is that the evidence was deficient in some way (or maybe he just had a bad lawyer). This argument about the sentencing to death of an innocent person can only work in the last case, but not in the first two, because the first two just deal with the miscarriage of justice regardless of what the punishment was and so point to the problem of justice, not any problem with capital punishment. 

Now, I am willing to be modest and say that in some cases, capital punishment should be suspended or at least reserved in some cases, one being that the justice system is too corrupt to trust it handing out punishments. That I would be in favor for, and would not, in principle, be inconsistent with my belief that Capital Punishment is called for in at least some, of not all cases. But then the case needs to be made that the justice system is indeed unreliable. Something like that is made later in the article, and I will address it.

In addition to that first argument, the article goes further and says, "Across the country, DNA and other new evidence have proven the innocence of more than 150 people after they were sentenced to death. In California, 66 people have had their murder convictions overturned because new evidence showed they were innocent." But doesn't this actually make the case for capital punishment? If the worry is that innocent men will be sentenced, doesn't DNA evidence showing now with more certainty that someone actually is innocent mean that the justice system won't actually be as inaccurate as before? And if DNA evidence can help clear a man, why can't it also make certain his guilt? If it can certainly determine someone innocent, it can also with the same certainty determine if he is guilty. And so, DNA technology actually makes the case for capital punishment, rather than its abolition. 

And again, this may be a case where someone who is for the death penalty can say they are for it only when DNA certainty is given. 

The second argument goes as follows, "there is a greater likelihood of wrongful convictions in capital cases. As Justice Stephen Breyer has explained: '[T]he crimes at issue in capital cases are typically horrendous murders, and thus accompanied by intense community pressure on police, prosecutors, and jurors to secure a conviction. This pressure creates a greater likelihood of convicting the wrong person.'" As explained earlier, this works only as a criticism of the justice system, not so much capital punishment. So if granted for the sake argument, that capital punishment was abolished, and it was replaced with the death penalty as recommended by the article, would that lead to more justice? Would that solve the problem of community pressure? I don't see how it would. People are rightly repulsed by the heinous nature of some of these crimes, and they will put pressure to secure a conviction even if the penalty was a life sentence. But then, would Breyer be against life sentences because of the intense community pressure that can lead to a wrongful conviction? And so on and so forth for every reduction of punishment proposed. 

Further, it may be the case that if there were a lesser punishment for these vicious crimes, that the incentive of the community to put more pressure on a conviction may actually be increased precisely because some might believe that there will be a less than just conviction handed out in the best case scenario, so might as well be as aggressive as one can, whereas if you believe that the death penalty may be a real just punishment, you know that so long as someone is indicted and due process is given, justice can be carried out and you can sleep at night. I don't know what the empirical evidence is on this issue, but considering that the author only cited an incentive and not a study, I can't imagine the stats on her side. 

The third argument says, "the death penalty is administered in a racially discriminatory fashion. Many studies have documented that African Americans and Latinos are more likely to be sentenced to death than whites on the same factual record." I've addressed this argument here before. Given the just conviction of a crime, we can ask what the just punishment is. If justice demands the death penalty, that a minority got the death penalty and a white man did not on the same facts of the case is not a miscarriage of justice for the minority. It is a miscarriage of justice on part of the white man who deserved the death penalty. So, the issue isn't that the death penalty is wrongly administered to certain people, but rather that it isn't administered enough. It isn't administered to those who do deserve it but didn't get it. The remedy therefore is not the abolition of capital punishment, but more administration of it. 

If it were the case that capital punishment was handed down to a minority criminal and not a white man, when justice did not demand capital punishment, then we just object to punishments being handed down without regard to proportion. But this could be said of any kind of punishment, and not just capital punishment. I don't think this is what the author had in mind since the example she gave concerning this discrepancy were capital crimes, which many advocates for the death penalty point to as a situation that demands capital punishment. Her case would have been stronger if she showed or gave an example of a crime that didn't merit the death penalty, and there was a racial discrepancy present. That would give me some reasonable pause. But that case was not presented, so, moving on. 

The fourth argument reads, "...30 years of empirical evidence and concluded that it failed to show that the death penalty had a deterrent effect." Well, that's okay, because the nature of capital punishment is retribution and the carrying out of justice, not deterrence. That is why understanding why people who are for the death penalty is important, because knowing that would have deterred this objection. Of course, this empirical point is contentious, but granting for the sake of argument that it is true, it is largely irrelevant. 

The rest of article deals with a proposed replacement of the death penalty, which I don't think I need to address.