The Death Penalty and the Strange Arguing of SisyphusRedeemed

In this post, I take on the daunting task of arguing ethics with professional philosopher SisyphusRedeemed. If you do not already subscribe to his superb Youtube channel, please consider doing so: http://www.youtube.com/user/SisyphusRedeemed

Before we begin, please watch the following video.

I have issues with some of the arguments that SR is presenting in this video*.

Regarding the estimate of innocent people executed; I understand your reasoning when you take the number 1.3 innocent deaths per year and speculate that it might be even lower, from the point you make about even if it is only 0.3 innocent deaths per year it should be cause for concern. But since you then turn the argument around, I would like to submit a counter argument to your lowering of the 1.3 number.

“Exonerations in the United States 1989 through 2003” by Samuel R. Gross et al (published in 2005) is available for download here: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=753084

How the four posthumously exonerated prisoners died is not mentioned in the paper, but from what I can gather from googling them, none of them were executed.

I wilfully admit that I have no evidence, but I would venture to guess that the effort of proving a persons innocence once that person is no longer alive will drop considerably, especially in cases were said person does not have close relatives willing and able to dedicate much effort to this cause.

The considerable difference in number of people exonerated before and after their demise is not a proof of this, but does, in my opinion, speak strongly for it.

The paper goes on to state that

”This is the most comprehensive compilation of exonerations available,[…] but it is not exhaustive. The criminal justice system in the United States is notoriously fragmented […]. There is no national registry of exonerations, or any simple way to tell from official records which dismissals, pardons, etc., are based on innocence.”

and

”In the great majority of these cases there was, at the end of the day, no dispute about the innocence of the exonerated defendants. This is not surprising. Our legal system places great weight on the finality of criminal convictions. Courts and prosecutors are exceedingly reluctant to reverse judgments or reconsider closed cases; when they do—and it’s rare—it’s usually because of a compelling showing of error. Even so, some state officials continue to express doubts about the innocence of exonerated defendants, sometimes in the face of extraordinary evidence.”

further

“[…] it is certain—this is the clearest implication of our study—that many defendants who are not on this list, no doubt thousands, have been falsely convicted of serious crimes but have not been exonerated.”

So even if 1.3 posthumous exonerations per year–and, as far as I have found, 0 posthumous exonerations, of people executed, per year–is representative I find little reason to believe that the true number of innocent people executed every year is lower than those 1.3.

Next, you present an argument by Ernest van den Haag, concerning whether it is ever permissible to have a set of policies that will result in the death of innocent people.

I fully agree that the answer is a resounding yes. The existence of absolute morals, where any one action can ultimately and definitely be deemed as good or bad no matter the circumstances, have been clearly and utterly disproven by the very religious doctrines claimed by many to be the source of such moral absolutes.

Therefore, to decide the morality of an action or a set of policies, we must look at the circumstances surrounding it.

And yet, you choose to eliminate the discussion of circumstance from your argument. The whole argument hinges on there being at least some small moral or material gain to the use of the death penalty.

I strongly question that being the case. To be fair, many studies have shown the death penalty to have a deterrent effect. But this has also been challenged, for example in “Capital punishment and capital murder: Market share and the deterrent effects of the death penalty” by Jeffrey Fagan et al (published in 2006), available here: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=928649

The study cites several other studies from 1975 onward, and notices a shift around 1996 since when “more than a dozen studies have been published claiming that each execution can prevent anywhere from three to thirty-two homicides”.

It goes on to say

“We think the new results are wrong, for a simple reason. The measures of homicide used in the new deterrence studies are overly broad: by studying whether punishments affect all homicides, these studies fail to identify a more plausible target of deterrence—namely, those homicides that are punishable by death. By broadening the target of the search for deterrent effects, these studies have overestimated not just the number of lives saved by deterrence, but whether any murders are averted by the threat of execution.[…] In this study, we find no evidence of deterrence when the effects of execution are estimated for the subset of homicides that are most directly affected by execution.”

The paper cites Streamlined Procedures Act of 2005 and Criminal Alien Deportation Improvements Act of 1995 as examples of “new rules that will remove procedural roadblocks and hasten executions”.

This is alarming, because it means that not only is it questionable whether the death penalty have any positive effects, but the argument that it has is itself used to lower the barriers for wrongful convictions, thereby increasing the amount of innocent lives sacrificed in the name of greater good. This, in turn, severely erodes your following argument that the higher frequency of exonerations on death row should be considered an argument for the death penalty.

You again cite the paper by Gross et al, from which you gather the data that death row inmates are about 100 times more likely to be exonerated than the regular prison population. While true, you draw some less than reasonable conclusions from this. In something bearing the semblance of a quote-mine, you start off with the very first part of the authors two-fold answer to their own question “What accounts for this enormous over-representation of murder defendants, and especially death-row inmates, among those who are exonerated?”

The paper states

“There are only two possible explanations:
One possibility is that false convictions are not more likely to occur in murder and death penalty cases, but only more likely to be discovered because of the comparatively high level of attention that is devoted to reviewing those cases after conviction. This is no doubt true, at least in part.”

But you fail to mention that the paper goes on, in a slightly different direction than your own arguing.

“But could this be the entire explanation? Could it be that false convictions in capital cases really are no more common than in other cases? If that were the whole story it would mean that if we reviewed prison sentences with the same level of care that we devote to death sentences, there would have been over 29,000 non-death row exonerations in the past fifteen years rather than the 265 that have in fact occurred—including more than 3,700 exonerations in non-capital murder cases alone.[…] This is a shocking prospect.”

So far, the argument is basically the same, although the authors of the paper focuses on the potentially huge number of wrongful convictions throughout the justice system, whereas you are painting out death row as a heaven for innocent inmates.

The real twist is still to come though:

“On the other hand, if this first explanation is not the whole story, that inescapably means that false convictions are more likely to occur in murder cases, and much more likely in death penalty cases, than in other criminal prosecutions. There are several reasons (apart from the evidence presented here) to believe that this too is almost certainly true: the extraordinary pressure to secure convictions for heinous crimes; the difficulty of investigating many homicides because, by definition, the victims are unavailable; extreme incentives for the real killers to frame innocent fall guys when they are facing the possibility of execution.[…] Whatever the causes, this is a terrible prospect: that we are most likely to convict innocent defendants in those cases in which their very lives are at stake.”

The conclusion is

“[…] the truth is probably a combination of these two appalling possibilities: We are both much more likely to convict innocent defendants of murder—and especially capital murder—than of other crimes, and a large number of false convictions in non-capital cases are never discovered because nobody ever seriously investigates the possibility of error.”

For a sense of my opinion on how the US prison system as a whole could be a lot better, watch the following two videos from The Young Turks:

On an ending note: I see what you did there ;)

I did not pick up on the reversed logo when first viewing your video, but as I wrote this post, I had an increasing feeling that you were using rhetorical tricks and quote-mining with the purpose of showing off the tricks, rather than arguing for the death penalty. When I was about to publish this post, and watched the beginning of your video again, I realised what the reversed logo meant… cheers mate!

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