Tuesday, December 09, 2008

Death penalty and utilitarianism

After I said in this post that I oppose the death penalty because of the problems of fallibility and process, DearieMe commented:

Would you still oppose capital punishment if (big "if" I'll grant you) someone demonstrated to your satisfaction that the number of 'murderers' executed in error was, say, an order of magnitude less than the number of lives saved by the deterrent effect? Or two orders of magnitude, or three....?
And then after a further comment by Dudley Sharp, he added:
Mr Sharp's comments imply that I could usefully modify my original question to include "the number of lives saved by the deterrent effect plus those saved by the prevention of further murders by convicted murderers". Does anyone gather British figures for homicides proven to be by convicted murderers? If not, why not?
The idea that the loss of innocent life might be justified if it prevents the loss of even more innocent life is, of course, a utilitarian argument. Mr Sharp also mentioned deterrence, but the part of his comment DM picked up on was important but different, and it hangs on the idea that convicted murderers might be released to re-offend. My post argued for whole life sentences in some cases, which would have the same preventative effect as a death penalty, though at greater expense. I think that expense is justified, because of the problems of fallibility and process. You can't release an executed person and there have been cases in this country at least of people being wrongly convicted for crimes that would surely have demanded the death penalty had it been in place - child murder (Stefan Kishko, Sally Clark) and terrorism (Guildford, Birmingham), for example.

So the experience here is that innocent people will be in danger of being killed if there is a death penalty. Whole life sentences remove the risk of further murders from those who have killed professionally of from some kind of mania and who are therefore a danger to society.

I think that brings us back to DM's original question, which is of a class that has been debated at other times: there is a group of people in a predicament, and the sacrifice of one or more will save the rest. For example, a ship sinks and ten people clamber onto a lifeboat that can only carry seven. The lifeboat starts to sink. Should three be thrown overboard, or should straws be drawn, or should volunteers be asked for, or should all perish?

I think the answer is that there is no right answer, because any premises on which any answers are based are, in fact, the real grounds of debate. It boils down to the importance placed on the individual and on the collective. In the case of the lifeboat, there's a real argument. If three people are thrown overboard it's just a matter of the merits of the selection process. If nobody is thrown overboard then these three people die anyway. Some might argue that this is the right choice, better that all die than that there is an injustice. This means weighing injustice against death. It's a different argument.

In the case of the death penalty, though, as DM states he postulates a very big if. I'm not aware there's any evidence that execution has any effect on murder rates in practice. Mr Sharp says there is, but provides no proper references. So this question is interesting in the abstract but should not be confused with an argument about capital punishment.

My own opinion is that we should strive for the least imperfect solution possible, without knowingly implementing any policies that would kill innocent people. It isn't especially compassionate, as a position. Many people facing the rest of their lives in prison are on suicide watch - we prevent them from carrying out their own death penalty for, as Kurt Vonnegut put it in Mother Night, crimes against themselves (I don't credit someone like Ian Brady with the humanity to sentence himself for the crimes he committed against others).

This is all about the fallibility issue, though. There's also the question of process. If a criminal abducted someone and imprisoned them for years, holding the threat of imminent death over them the whole time but letting them try to argue their way out of it, or throw dice, or examine the entrails of fish for signs that they should be killed or released - and legal process makes about as much sense and has as much rationality, for many of the convicted, as do these procedures; if they told them some mornings that they were to be killed later that day, or the next... then when the time came said "only kidding"; if they surrounded their victims with ritual, letting them choose their own food for that one fateful morning, making a ceremony of the murder, inviting spectators...

If a criminal did that, they'd be regarded as the most sadistic and horrible murderer of all time.


Anonymous said...

On balance I'm against the death penalty because I have such a low opinion of most of the people who are against the death penalty (present compay excepted). If capital punishment were restored these people would serve on juries and then violate the terms of their oath to return "not guilty" verdicts on people they believed to be guilty, just to spare them the death sentence. The consequence would be large numbers of murderers going free.

Mark Wadsworth said...

Q1. Would you be prepared to be hanged by mistake to protect other innocent people from being murdered (assuming that the utilitarian argument holds)?

Q2. "Whole life" sentences have just the same preventative effect as death penalty, the cash cost is much the same either way. Let's say £1m to keep somebody under lock and key for their natural born, and much the same in legal aid during endless appeals, compensation to family members of wrongly executed, general waste of public time in debating the issue.

Q3. As Dearieme says, the issue is self-cancelling.

Q4. Apart from 'crimes of passion' (which would not be prevented by deterrence effect of death penalty), most crim's work their way up to murder. They start by bullying at school, then progress to shoplifting, bravado crimes, mugging, rape and murder.

If you clamped down on these bastards at the earliest stage (let's say one year in prison for shoplifting or bravado crimes; ten years for a second offence on that list, each without parole) then most of them would be well past the prime age for violent crime (male, 15 - 25) by the time they got out the second time. Third offence whole life, obviously. If some people make it a lifestyle choice, good for them.

Q5. Would you be prepared to flick the switch, pull the lever, pull the trigger etc yourself? And if so, are you not perhaps a little wrong in the head yourself?

Peter Risdon said...

"...most crim's work their way up to murder..."

I think it would be worth suspending almost all first sentences, and making all second sentences in such cases consecutive. So, you get three years suspended for crime 1 then if you commit another crime, it's two years for that, and then a further three for the first crime.

A lot of repeat offending would fall away.

Peter Risdon said...

BTW, about the only good thing Heath ever said was similar to Mark's comment during a Parliamentary debate on capital punishment. Some prat said he'd be prepared to be the executioner, and Heath asked if he'd be prepared to be the executed (in error).

dudleysharp said...

Again, you are in error.

Innocents are more at risk without the death penalty.

The death penalty has enhanced deterrence, enahnced due process and enhanced inacapaitation, which independently and together, offer greater protections for the innocent - both those sentenced to death row, as well as any potential innocents who would be harmed by the living murderers.

dudleysharp said...

you seem to misunderstand deterrence, with regard to murder rates and executions:

Death Penalty and Deterrence: Let's be clear
by Dudley Sharp, Justice Matters, 0104
In their story, "States With No Death Penalty Share Lower Homicide Rates", The New York Times did their best to illustrate that the death penalty was not a deterrent, by showing that the average murder rate in death penalty states was higher than the average rate in non death penalty states and, it is. (1)
What the Times failed to observe is that their own study confirmed that you can't simply compare those averages to make that determination regarding deterrence.
As one observer stated: "The Times story does nothing more than repeat the dumbest of all dumb mistakes — taking the murder rate in a traditionally high-homicide state with capital punishment (like Texas) and comparing it to a traditionally low-homicide state with no death penalty (like North Dakota) and concluding that the death penalty doesn't work at all. Even this comparison doesn't work so well. The Times own graph shows Texas, where murder rates were 40 percent above Michigan's in 1991, has now fallen below Michigan . . .". (2)
Within the Times article, Michigan Governor John Engler states, "I think Michigan made a wise decision 150 years ago," referring to the state's abolition of the death penalty in 1846.   "We're pretty proud of the fact that we don't have the death penalty."(3)
Even though easily observed on the Times' own graphics, they failed to mention the obvious. Michigan's murder rate is near or above that of 31 of the US's 38 death penalty states. And then, it should be recognized that Washington, DC (not found within the Times study) and Detroit, Michigan, two non death penalty jurisdictions, have been perennial leaders in murder and violent crime rates for the past 30 years. Delaware, a jurisdiction similar in size to them, leads the nation in executions per murder, but has significantly lower rates of murders and violent crime than do either DC or Detroit, during that same period.
Obviously, the Times study and any other simple comparison of jurisdictions with and without the death penalty, means little, with regard to deterrence.
Also revealed within the Times study, but not pointed out by them,: "One-third of the nation's executions take place in Texas—and the steepest decline in homicides has occurred in Texas, Oklahoma, Louisiana and Arkansas, which together account for nearly half the nation's executions." (4)
And, the Times also failed to mention that the major US jurisdiction with the most executions is Harris County (Houston, Texas), which has seen a 73% decrease in murder rates since resuming executions in 1982 -- possibly the largest reduction for a major metropolitan area since that time.
Also omitted from the Times review, although they had the data, is that during a virtual cessation of executions, from 1966-1980, that murders more than doubled in the US. Any other rise and fall in murders, after that time, has been only a fraction of that change, indicating a strong and direct correlation between the lack of executions and the dramatic increase in murders, if that is specifically what you are looking for.
If deterrence was measured by direct correlation's between execution, or the lack thereof, and murder rates, as implied by the Times article, and as wrongly assumed by those blindly accepting that model, then there would be no debate, only more confusion. Which may have been the Times' goal.
Let's take a look at the science.
Some non death penalty jurisdictions, such as South Africa and Mexico lead the world in murder and violent crime rates. But then some non death penalty jurisdictions, such as Sweden, have quite low rates. Then there are such death penalty jurisdictions as Japan and Singapore which have low rates of such crime. But then other death penalty jurisdictions, such as Rwanda and Louisiana, that have high rates.
To which an astute observer will respond: But socially, culturally, geographically, legally, historically and many other ways, all of those jurisdictions are very different. Exactly, a simple comparison of only execution rates and murder rates cannot tell the tale of deterrence. And within the US, between states, there exist many variables which will effect the rates of homicides.

See REVIEW, below
And, as so well illustrated by the Times graphics, a non death penalty state, such as Michigan has high murder rates and another non death penalty state, such as North Dakota, has low murder rates and then there are death penalty states, such as Louisiana, with high murder rates and death penalty states, such South Dakota, with low rates. Apparently, unbeknownst to the Times, but quite obvious to any neutral observer, there are other factors at play here, not just the presence or absence of the death penalty. Most thinking folks already knew that.
As Economics Professor Ehrlich stated in the Times piece and, as accepted by all knowledgeable parties, there are many factors involved in such evaluations. That is why there is a wide variation of crime rates both within and between some death penalty and non death penalty jurisdictions, and small variations within and between others.  Any direct comparison of only execution rates and only murder rates, to determine deterrence, would reflect either ignorance or deception.
Ehrlich called the Times study "a throwback to the vintage 1960s statistical analyses done by criminologists who compared murder rates in neighboring states where capital punishment was either legal or illegal." "The statistics involved in such comparisons have long been recognized as devoid of scientific merit." He called the Times story a "one sided affair" devoid of merit. Most interesting is that Ehrlich was interviewed by the Time's writer, Fessenden, who asked Ehrlich to comment on the results before the story was published. Somehow Ehrlich's overwhelming criticisms were left out of the article.
Ehrlich also referred Fessenden to some professors who produced the recently released Emory study. Emory Economics department head, Prof. Deshbakhsh "says he was contacted by Fessenden, and he indicated to the Times reporter that the study suggested a very strong deterrent effect of capital punishment." Somehow,
Fessenden's left that out of the Times story, as well. (5).
There is a constant within all jurisdictions -- negative consequences will always have an effect on behavior.

Maybe the Times will be a bit more thoughtful, next time.


"The List: Murder Capitals of the World", 09/08, Foreign Policy Magazine
Capital punishment (cp) or not (ncp)
murder rates/100,000 population
4 out of the top 5  do not have the death penalty
1. Caracas (ncp), Venezuela 130-160
Bad policing.
2. New Orleans (cp), La, USA  69-95
Variable because of different counts in surging population. Drug related.
Nos 2 & 3 in US, Detroit (ncp), 46 and Baltimore (cp), 45.
3. Cape Town (ncp), South Africa 62
Most crimes with people who know each other.
4.  Port Mores (ncp), Papua New Guinea 54
Chinese gangs, corrupt policing
5. Moscow (ncp), Russia 9.6
Of the Top 10 Countries With Lowest Murder Rates  (1), 7 have the death penalty

O f the Top 10  Countries With Highest Murder Rates  (2), 5 have the death penalty

Top 10 Countries With Lowest Murder Rates
Iceland   0.00 ncp
Senegal   0.33 ncp
Burkina Faso 0.38 cp
Cameroon 0.38 cp
Finland 0.71 ncp
Gambia 0.71 cp
Mali 0.71 cp
Saudi Arabia 0.71 cp
Mauritania 0.76 cp
Oman cp

Top 10  Countries With Highest Murder Rates
Honduras 154.02 ncp
South Africa 121.91 ncp
Swaziland 93.32 cp
Colombia 69.98 ncp
Lesotho 50.41 cp
Rwanda 45.08 ncp
Jamaica 37.21 cp
El. Salvador 36.88 cp
Venezuela 33.20 ncp
Bolivia 31.98 cp
(1) http://www.mapsofworld.com/world-top-ten/countries-with-lowest-murder-rates.html    no date
(2) http://www.mapsofworld.com/world-top-ten/countries-with-highest-murder-rates.html    no date


1)  "States With No Death Penalty Share Lower Homicide Rates",  The New
York Times 9/22/00 located at     
www (dot) nytimes.com/2000/09/22/national/22STUD.html  and www (dot) nytimes.com/2000/09/22/national/22DEAT.html
2) “Don't Know Much About Calculus: The (New York) Times flunks high-school
math in death-penalty piece", William Tucker, National Review, 9/22/00, located
at   www (dot) nationalreview.com/comment/comment092200c.shtml
3) ibid, see footnote 11
4) "The Death Penalty Saves Lives", AIM Report, August 2000, located atwww (dot) aim.org/publications/aim_report/2000/08a.html
5) "NEW YORK TIMES UNDER FIRE AGAIN", Accuracy in Media,  10/16/00, go to www (dot) aim.org/

copyright 2000-2008 Dudley Sharp: Permission for distribution of this document, in whole or in part,  is approved with proper attribution.
Dudley Sharp, Justice Matters
e-mail  sharpjfa@aol.com,  713-622-5491,
Houston, Texas
Mr. Sharp has appeared on ABC, BBC, CBS, CNN, C-SPAN, FOX, NBC, NPR, PBS , VOA and many other TV and radio networks, on such programs as Nightline, The News Hour with Jim Lehrer, The O'Reilly Factor, etc., has been quoted in newspapers throughout the world and is a published author.
A former opponent of capital punishment, he has written and granted interviews about, testified on and debated the subject of the death penalty, extensively and internationally.

dudleysharp said...

There have been 16 recent studies, inclusive of their defenses, which find for death penalty deterrence.

For some of the recent 16 deterrence studies, go to:


US Senate testimony


and this:

"I oppose the death penalty." "But my results show that the death penalty (deters) — what am I going to do, hide them?" "Science does really draw a conclusion. It did. There is no question about it." "The results are robust, they don't really go away" "The conclusion is there is a deterrent effect.".

Prof. Naci Mocan, Economics Chairman, University of Colorado at Denver
"Studies say death penalty deters crime", ROBERT TANNER, Associated Press, Jun 10, 2007, 2:01 PM ET

I don't hnk it is up to death penalty propeonets to prove any deterrent effect. All prospects for a negative outcome deter some. There is no exception.

However, it is up to death penalty opponents to prove there is no deterrence with the death penalty. Of course, they can offer no such proof, because all prospects of a neative outcome really do deter some.

Peter Risdon said...

Comparing North Dakota with Texas wasn't what I had in mind. It was the comparisons I saw, twenty-odd years ago, of neighbouring counties in adjacent states, one of which had the death penalty and one of which didn't, that seemed persuasive when the murder rates were very similar.

That was pre-internet and now I'm the one who's not sourcing stuff.

I'll try to look at the current evidence.

For clarification, I'm not anti-death-penalty for any other reasons than those stated. I don't have a position on the utilitarian argument; it's too difficult. That isn't facetious, I just don't know how to resolve it.

Peter Risdon said...

"... it is up to death penalty opponents to prove there is no deterrence with the death penalty..."

I don't think it's ever up to anyone to prove a negative.

I'm sure the death penalty deters some people. At the same time, some murders have been committed because the perps have wanted to remove potential witnesses to a capital crime.

Where are the stats that show how that balances out?

BTW, DM raises an interesting point that has relevance beyond the death penalty: will excessive penalties deter juries from convicting? I'd like to see some research into that because, again, the experience over here seems to be that this is very exceptional.

dudleysharp said...


I understand your sentiment. But your "sure it deters some" was my point.

Removal of witnesses is not an issue, because you can only get a maximum sentence for murdering a witness, meaning if the maximum sentnece is death, life imprisonment or 20 years, the perp might murder, anyway, for they are only trying to eliminate witnesses so they don't get sentenced to the maximum.

In the US, the death penalty is only an option, there must always be an alternate sentence, often life imprisonment.

I suspect, but do not know, that aquittals are less likely in a death eligible case than in others, simply because the evidence will be stronger in a death eligible case.

I know of one acquittal in a death eligible case and the jurors were interviewed after word and said, yeah we are fairly certain he did it, but the state did not prove the case beyond a reasonable doubt.
I'm sure there are other acquttals.

Thank you for your consistently good questions and asswers.

Peter Risdon said...

Thank you for your detailed argument, Dudley.

quicksilver said...

Last night there was in France the story of a man who killed two women. J Frimenti or some such name.
He had been released from prison to commit the latest 2 crimes.
Following one woman, doping, then dumping the body in a canal. The next victim he burned to death in her car.
They proved to me beyond doubt he was guilty but worse that the French legal system was at fault to allow such a cunning man to be free.
The result of his trial was that he is "recoverable" and at the age of 61 will be a free man in society perhaps near one of your mature lady friends or wife even.

As for Sally Clark her son died 6 hours after his mercury vaccine. Mercury is the deadliest poison that is not radioactive and despite hundred of thousands of other babies dying at this time we are told by the same authorities it is just coincidence. Regard the death of George fisher this year another and latest coincidence of death following vaccinations.

Failure to see a loving mother is a loving mother and failing to see a murdering bastard is a murdering bastard does not give me any faith in authority.

Mark Wadsworth said...

I'll add this as point 6:

I'm sure the death penalty deters some people. At the same time, some murders have been committed because the perps have wanted to remove potential witnesses to a capital crime.

Quicksilver misses the point. Being anti-death penalty does not mean you are against "life sentence means life sentence" for more serious crimes. Said French crim shouldn;t have been released, full stop.

This is merely a question of degree. Should these people be locked up until they die of natural causes, or should they be locked up and killed earlier?

Anonymous said...

When I say "On balance I'm against the death penalty" I should add "except when the debate flares up". Because then those who are pro death penalty tend to rehearse their arguments whereas those who are against mainly just shout "you are barbaric" at them. My response is to side with those who are being rational, at least until calm is restored.

Robert the Biker said...

Personally I am in favour of the death penalty, as I believe that there really are some people who benefit the world only by leaving it.
I would have a great deal more faith in so-called 'life' sentences had we not been quite categorically promised that 'life will mean life' when the death penalty was abolished in the sixties; that worked well didn't it? Life sentences for murder have average tariffs of 12 years last time I looked.
Remember Myra Hindley? Evil bitch murdered kids and hid the bodies on the moors? Sentenced to life but had all sorts of hand wringers and do-gooders trying to get her released on humanitarian grounds - Denning was one. What point having a penalty which can be overuled by the incoming government or the next activist judge.
Sorry, string them up; and yes, I am perfectly willing to pull the lever, that does not oddly enough make me a nutter, merely someone prepared to back their own judgement.
Will those of you who think they are all just misunderstood look after them in YOUR homes surrounded by YOUR families?
Thought not.

Anonymous said...

"had we not been quite categorically promised that 'life will mean life' when the death penalty was abolished in the sixties": yes we were promised that - and the promise was a deliberate lie, I suspect.

Unknown said...

I have never understood why so many people focus on deterrence. Deterrence is not the purpose of the justice system; justice is. And justice demands that certain crimes be met with death. For that reason, and that reason alone, I support the death penalty.

It's incontrovertible, however, that the death penalty deters murderers from killing other inmates. Life sentences do not.

dudleysharp said...


deterrence has been the fous, here, because the topic was utilitarian.

I agree with you, justice is the primary reason for the death penalty.

Saving innocent lives is a secondary, but important, by product of that justice.

There are some excellent moral/ethical writings supportive of the death penalty. Here are a few. You have probably read some of them.

(1) John Stuart Mill, speech on the death penalty

(2)"The Death Penalty", by Romano Amerio, a faithful Catholic Vatican insider, scholar, professor at the Academy of Lugano, consultant to the Preparatory Commission of Vatican II, and a peritus (expert theologian) at the Council.

titled "Amerio on capital punishment ", Chapter XXVI, 187. The death penalty, from the book Iota Unum, May 25, 2007

(3) Immanuel Kant, "The Right of Punishing", inclusive of the death penalty

(4) "Capital Punishment: A Catholic Perspective",
by Br. Augustine (Emmanuel Valenza)

(5) "Defending Capital Punishment" by William Gairdner

(6) "Capital Punishment: The Case for Justice", Prof. J. Budziszewski, First Things, August / September 2004 found http://www.orthodoxytoday.org/articles4/BudziszewskiPunishment.shtml

(7) Just Violence: An Aristotelian Justification of Capital Punishment

(8) "Christian Scholars: Support for the Death Penalty",

(9) Chapter V:The Sanctity of Life, "Principles of Conduct: Aspects of Biblical Ethics" By John Murray


NOTE: Religious positions in favor of capital punishment are neither necessary not needed to justify that sanction. However, the biblical and theological record is very supportive of the death penalty.

Many of the current religious campaigns against the death penalty reflect a fairly standard anti death penalty message, routed in secular arguments. When they do address religious issues, they often neglect solid theological foundations, choosing, instead, select biblical sound bites which do not impact the solid basis of death penalty support.

Dudley Sharp, Justice Matters
e-mail sharpjfa@aol.com, 713-622-5491,
Houston, Texas

Mr. Sharp has appeared on ABC, BBC, CBS, CNN, C-SPAN, FOX, NBC, NPR, PBS , VOA and many other TV and radio networks, on such programs as Nightline, The News Hour with Jim Lehrer, The O'Reilly Factor, etc., has been quoted in newspapers throughout the world and is a published author.

A former opponent of capital punishment, he has written and granted interviews about, testified on and debated the subject of the death penalty, extensively and internationally.

Unknown said...

Ah, thanks for the links, Mr. Sharp. May I post them? And here is one you may not have seen, which debunks the "racial imbalance" nonsense.


Anonymous said...

Pro-death penalty advocates claim the death penalty is imposed on society’s most heinous criminals (incorrectly labeled as “the worst of the worst”), yet no serious scholars could argue that crimes are adjudicated in proportion to the damage and suffering they cause society (Reiman). If the Death Penalty were applied in proportion to the deaths and social and economic damage created, a significant number of white collar criminals, business executives, and government officials would receive the Death Penalty. However, wealthy offenders rarely get the death penalty. Informants who can make deals and provide information are also spared and sometimes released. Serial killers who provide information on killings may also spared and in extreme cases, released.