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June 20, 2014

"Ignoring Issues of Morality or Convicting the Innocent, Is Capital Punishment a Good Idea or a Bad Idea?"

The question in the title of this post is the title of this intriguing little essay by Ron Allen now available via SSRN. Here is the abstract:

The conventional debate over the risk of executing an innocent person is examined and shown to be vacuous.  More innocent lives, by orders of magnitude, are lost through incarceration (the alternative to a death penalty) than could possibly have result from executing innocent defendants.  This is an instance of the deadly dilemma of governing, which inevitably involves tradeoffs of social goods and costs, often of precisely the same variable.

June 20, 2014 at 12:28 PM | Permalink

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Within prisons in English and Wales, in 2013, there were 4 killings by inmates by other inmates - the highest since 1998, and up from 0 in 2012. I cannot confirm that these killings were committed by convicted murderers in each instance. Perhaps this says rather a lot about the differences in penal custody and management between the UK and the USA. And no, we do not lock everyone up in solitary confinement and throw away the key. The essay ignores the reality that many deaths (murders) in prisons are much more avoidable if penal resources and management are at a quantity and quality that the State should accept, without the loss of humane treatment for all inmates.

Posted by: peter | Jun 20, 2014 3:48:16 PM

Corrected version: Within prisons in England and Wales, in 2013, there were 4 killings by inmates by other inmates - the highest since 1998, and up from 0 in 2012. I cannot confirm that these killings were committed by convicted murderers in each instance. Perhaps this says rather a lot about the differences in penal custody and management between the UK and the USA. And no, we do not lock everyone up in solitary confinement and throw away the key. The essay ignores the reality that many deaths (murders) in prisons are much more avoidable if penal resources and management are at a quantity and quality that the State should accept, without the loss of humane treatment for all inmates.

Posted by: peter | Jun 20, 2014 3:50:47 PM

Corrected version 2 (got to get it right eventually!): Within prisons in England and Wales, in 2013, there were 4 killings of inmates by other inmates - the highest since 1998, and up from 0 in 2012. I cannot confirm that these killings were committed by convicted murderers in each instance. Perhaps this says rather a lot about the differences in penal custody and management between the UK and the USA. And no, we do not lock everyone up in solitary confinement and throw away the key. The essay ignores the reality that many deaths (murders) in prisons are much more avoidable if penal resources and management are at a quantity and quality that the State should accept, without the loss of humane treatment for all inmates.

Posted by: peter | Jun 20, 2014 3:54:26 PM

I personally don't think the innocent issue is the ONLY reason to oppose the death penalty and if that was ALL there was, it would be a hard question. But, it isn't. It is a strawman to assume so, even if some focus particularly on this one issue. It is just one of various things, including (in several cases) in effect not being guilty of the capital crime. Few homicides result in death sentences, even in Texas.

And, even then, the argument against it is flawed. Peter addresses the concerns about murders in prison. Note some of these are to fellow inmates (a footnote flags a child molester killed in prison). The concern about murderers killing in prison sounds like a cost/benefit issue. Given even a fraction of those who are sentenced to die are executed or those that do are on death row for a long time (a "quick" stay would be still probably over five years with basic trial and appeals even the fairly strict type will be willing to provide), execution seems to be of limited value here.

It is hard to quantify these things too. Other countries, and the lower prison death rates (and incarceration rates as noted in another post) suggest this, that abolished the death penalty also overall have less murders and in various ways respect life more arguably (e.g., certain social safety net programs) than we do. Is the basic "thou shall not execute" a statement of principle that is the apex of a wider whole?

The article is helpful if we argue in simplistic terms. At times, including here, sometimes we do. But, that's it.

Posted by: Joe | Jun 20, 2014 4:51:02 PM

Finally, in respect to murder in prison, this at most suggests the justice in executing those who kill there. Unless we vastly expand those we sentenced to die, those who kill in prison come from a range of sources, be it the vast number of murderers we don't execute now, those waiting to be executed, those in prison for long sentences with a mind-set that they really have little to lose etc. Execution would do something to temper this.

And, there is something different about the state killing, including by some imperfect "minority report" method pre-emptively, than others doing it. Again, complicated.

Posted by: Joe | Jun 20, 2014 4:55:00 PM

Wow. A lawyer with a clue. A lawyer interested in the empirical world. Unless Prof. Berman objects to my networking via this blog, I may contact him about additional concepts. I will not use Prof. Berman's name to avoid embarrassing him by any association with mine.

He is like Prof. Berman, in "equipoise" about the death penalty. I agree with both, that is the correct position for academic lawyers to have.

Posted by: Supremacy Claus | Jun 20, 2014 8:47:36 PM

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