The Death Penalty, Deterrence in Principle

civil rights, Conceits, culture, law, philosophy, politics Leave a reply

This is going to be the first part of a four-part series, dealing with topics are normally informed by a religious point-of-view, but have somehow managed to leak into some secular world-views. They’ll be collected together under the arrogantly-titled ‘Conceits’ tag.

There are two main arguments in favour of the death penalty, both of which I feel fail to be convincing. I’ll get to them, but first I need to sketch out some philosophical/ethical commitments. It helps to get these out of the way, as if you disagree with these commitments, it helps identify where we diverge in the argument.

Firstly, I take seriously the commitments to the Right to Life that are written into law. In the Canadian Charter of Rights and Freedoms:

7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

The Declaration of Independence of what would become the United States:

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.

The UN’s Universal Declaration of Human Rights:

Everyone has the right to life, liberty and security of person.

A large number of countries have signed on to the UDHR, such that it now has the strength of International Law. I bring this up not to point at it as if the job is done, but to say: this is one of my commitments, the Right to Life of all people (relax, anti-choice folk, I’ll be dealing with your arguments later). I think it’s interesting in that the US and the UN both declare this to be “inalienable”, whereas the Canadian Charter makes the much more practical concession “except in accordance with the principles of fundamental justice”. I don’t know how Americans deal with the embarrassment of several of their states being in constant violation of their self-declared principles.

So I don’t believe that the Right to Life is inalienable, but if it stands on it’s tip-toes and squints, it can see ‘inalienable’ on a clear day. It’s pretty damn close, is what I’m saying. We need to have good reasons to violate the Rights to Life, Liberty or Security of a person.

From there, I have commitments similar to Mill insofar as I believe that a violation of these Rights is a Harm, and the State is only justified in harming one or more individuals in order to prevent a greater harm. In all cases, harm (especially State-sanctioned harm) is to be minimised: the State may only bring to bear sufficient harm to prevent the individual(s) from doing the harmful acts that kicked the whole thing off.

This is the philosophical underpinning of the legal freedoms many of expect in the world today: if the government wants to listen in on our conversations, they require a warrant from a judge to do so; if we are brought to court, we are presumed to be innocent until such evidence is brought to bear that there can be no reasonable doubt that we are guilty of the crime of which we are accused. [Caveat: I’m short-cutting to the US justice system here, as I am less familiar with the Canadian system. Thank you, TV]

I think it is reasonable to assert that a violation of the Right to Security is a lesser violation than a violation of the Right to Liberty, which is lesser than a violation of the Right to Life. Moreover, a violation of the Right to Security is easier to rectify than a violation of the Right to Liberty, which is easier to rectify than a violation of the Right to Life.


(apologies for the unskippable ad)

The first argument that I’ll deal with here is:

The Death Penalty as Deterrence

The Deterrence argument is relatively simple, and is based on a very simple model of human psychology and behaviour: people don’t like bad things to happen to them. Pick a behaviour that you want to modify, introduce a penalty for it and the incidence of that behaviour will decrease. Additionally (and yes, this is a separate thing), increasing the degree of the penalty will further decrease the incidence of the behaviour.

There are two approaches to taking this down.

How plausible is this model?

So this whole thing hinges one certain conceptions about ‘how people make decisions’. The argument is based on the idea that if we sufficiently threaten people, then they will take that threat into account when making decisions, and make the choice that doesn’t result in the threat coming to fruition.

Unpacking that, we have two claims:

  1. People carefully weigh out the consequences to their decisions
  2. Given a range of choices, people will avoid the one that has a threat as a consequence

Now, first, I think it’s important to note that these are general claims, not universal claims, so citing just one example of ‘that one time I did something without thinking’ isn’t a sufficient argument. Fortunately, there’s a whole science based on long-term decision making out there: we don’t have to just make up nonsense. And this means that both claim 1 and claim 2 are baseless nonsense.

Regarding claim 1: People carefully weigh out the consequences to their decisions

First of all, not all consequences are equal. In fact, the value of a consequence may vary depending on how far in the future it occurs. A simple thought for you: If you had the choice between receiving $20 (or equivalent in your local currency) right now, or $100 in 5 minutes, which would you choose? $100 in 5 minutes is typically valued more highly than $20 now. How about $20 now, or $100 in 50 years time? Suddenly that $100 is worth much less than the $20.

We can get into the whys at some other time, the important point to note here is that the value of a consequence is discounted the farther into the future it appears. It is discounted even more relative to its uncertainty.

So you expect that an unknown range of penalties (ranging from being found not-guilty to death), at an unknown-but-long time in the future and being implemented by unknown people (“the state”), when even being caught in the first place is uncertain, is enough to dissuade someone from committing their intended crime, assuming they sit down to calculate all of this ahead of time?

Really? Based on what, exactly?

Because no-one is going to sensibly argue that death isn’t A Bad Thing. The argument isn’t that ‘death isn’t bad’, the argument is that the model of human thinking that the idea of deterrence is based on is ridiculously insufficient. It’s narrow, limited, and doesn’t even predict the actions of people who are committing non-crimes that carry serious results (cheating, etc).

Secondly, crimes are often committed in moments of excited emotional states (PDF) (see also google books).

The immediate motivation for the majority of both women’s and men’s homicides are fights and arguments […] Nearly half of all homicides, committed by men or women, were preceded by some sort of argument or fight, such as a conflict over money or property, anger over one partner cheating on another, severe punishment of a child or abuse of a partner, retaliation for an earlier dispute, or a drunken fight over an insult or other affront.

This likewise occurs with regards to sexual assaults, and rapes. I am, by no means, defending their actions, I am simply pointing out that people in that situation are not going to stop and calmly work out the possibly repercussions of their actions. If this is how humans operated generally, the world would be in a far better state than currently. Most of our actions operate on automatic, and are formed from habit, with each step in escalation ‘naturally’ following from the previous step, until a certain emotional state is reached (which varies by person). It has long been shown that the involvement of the emotional centre of the brain, the amygdala, results in reduced activity in the decision areas of our brain (the prefrontal cortex). While the hijack mentioned in the link is one particular case, there is also a spectrum of inhibition of the prefrontal cortex by various other emotion-related neurochemicals.

Let’s say you read all of this and respond with “so what? If people aren’t thinking rationally, and aren’t thinking through the consequences of their actions, then they get what’s coming to them!”

Problem 1: If you’re making an argument in favor of deterrence, this response is inappropriate. For deterrence to work, you need people to think in this allegedly ‘rational’ way. If people don’t think that way, then you need to rethink the whole ‘deterrence’ aspect, because you’ve just admitted that your position has fallen apart.

Problem 2: What you’re saying is that the ‘smart’ criminals will be deterred, but that the ‘stupid’ ones won’t. You can cut that up and rephrase it anyway you like, but the bottom line is that there biological reasons for people not to think these things through in that heated moment, and your argument is that ‘those people who can (and do) make a rational calculation will be deterred, and those who can’t won’t. So we need to kill those people who don’t in order to continue to deter those who can’. This is the the state sanctioned killing of people who are less able to keep their emotions in check because they are less able to keep their emotions in check. This would seem to be a problematic position to hold.

So claim 1 is clearly, flat out wrong. As claim 2 hinges on claim 1, it’s pretty much done too, but for the sake of completeness:

Regarding claim 2: given a range of choices, people will avoid the one that has a threat as a consequence

And again, this is absolutely not how humans operate.

First, this is a false dichotomy. Just because there is a risk attached to something that I want to do does not entail that I will immediately cease wanting to do that. I will, in fact, seek to mitigate the risk as much as possible. I refer you to skateboarders and headgear as a simple example. When it comes to crime, getting punished is dependent on a whole range of factors:

  1. The crime has to be reported
  2. The existence of witnesses
  3. The credibility of those witnesses
  4. The existence of evidence
  5. The credibility of that evidence

In the United States, you don’t even have to deal with all of these factors, you simply have to mitigate them sufficiently in order to introduce “reasonable doubt”. Even in the case of a suspect who is unaware of these facts, who blunders away from the crime scene, who is seen by multiple witnesses… So long as the suspect isn’t a person of colour, there’s a pretty low chance the case will go to trial.

The study found that out of 2,294 homicides in the period, 30 percent have led to a conviction for murder or manslaughter, according to the analysis of police and court records. The Post last published a similar study in 1993, when it found that 25 percent of the 1,286 homicides between 1988 and 1990 led to such a conviction.

If the suspect is a person of colour, however, there’s a pretty good chance that they’ll end up on death row regardless of the facts.

So let’s be clear: the arguments in favour of deterrence aren’t plausible. They are based on a flawed model of human thinking, and should be laughed out of the room whenever they are brought up. However, it may be the case that there is something to the idea of deterrence: regardless of how badly the argument in favour of something is, the idea may still work out.

Part 1: The Death Penalty, Deterrence in Principle
Part 2: The Death Penalty, Deterrence in Practice
Part 3: The Death Penalty as Retribution
Part 4: The Death Penalty, The Economic Argument


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