Ernest van den Haag The Ultimate Punishment Van den Haag

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Ernest van den HaagThe Ultimate Punishment

• Van den Haag considers several standard arguments
  against C.P. and tries to reject them.
• In this spirit, rather than just going through
  van den Haags paper I want to use it as a point
  of departure for exploring some common arguments
  against C.P. and their rebuttals.

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1st Argument Against The Death Penalty Does Not
Deter Crime
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Rebuttal (1) The Trouble With Statistics

• Statistics this broad can be misleading.
• There are too many variables to control for
  (which state, general economic health, gun
  availability, drug availability, publicity, etc.)
• Some studies conclude there is a deterrent
  effect, some studies conclude the opposite
• Coincidentally, the studies seem to prove
  whatever the people who pay for the study wants
  it to prove.
• Statistics and studies are, at best,
  inconclusive. But there are good reasons to
  think it does deter.

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Rebuttal (2) The Best Bet Argument

• Even if we dont know for sure if the death
  penalty deters, we should bet that it does (its
  a bet either way.)
• If it does, then we save innocent lives if it
  doesnt we only loose the lives of convicted
  killers.
• If we dont have a death penalty and it doesnt
  deter weve lost nothing (except maybe justice?)
  If we dont and it does deter, we loose innocent
  lives.

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Rebuttal (3) The Common-Sense Argument

• What people fear more will have a greater
  deterrent effect on them.
• People fear death more than they do life in
  prison.
• Therefore, people will be deterred more by the
  death penalty than by life.
• This wont deter all capital crimes (a lot is
  done in passion)
• But some such crimes are done on a cost benefit
  analysis make the costs higher and they wont do
  it.
• The combination of the best bet and the
  common-sense arguments is powerful
• Common-sense gives us reason to think it might
  work, and the best bet abolishes the need to be
  sure.

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2nd Argument Against The Death Penalty is
Arbitrarily Applied

• Who gets the death penalty is subject to
  irrelevant factors (prosecutorial discretion,
  judicial discretion, identity of the victim,
  etc.)
• Each case is too complicated to set hard and fast
  rules, and hence there is no way to eliminate
  capriciousness.
• The most prolific serial killer in U.S. history,
  Gary Ridgeway the green-river killer (at least
  48 victims) only got life in prison.
• Many people are on death row for killing only one
  person.
• How can any system this random be just?

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Rebuttal Prosecutorial Leverage

• Prosecutors often have to cut deals with
  criminals (usually in the form of a lighter
  sentence).
• This is due to having a weak case or needing
  information/testimony/allocution from the
  defendant.
• If the state has the death penalty then the
  prosecutor can use that as leverage.
• Seek the death penalty but offer life in prison
  if the defendant cooperates.
• If the state doesnt have the death penalty then
  the most the prosecutor can seek is life in
  prison.
• They must then offer a lighter sentence (say, 25
  years) in exchange for cooperation.
• Thus, without C.P. some criminals will get
  lighter sentences than they deserve.

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3rd Argument Against The Death Penalty is Racist

• It is a fact that racial minorities are more
  likely to be sentenced to death then are white
  people when their crimes are comparable.
• Why this is the case is open for debate (systemic
  racism, racist judges/juries, unequal legal
  council, etc.)
• In order to be just legal institutions must be
  color-blind.
• The fact that the death penalty is applied in a
  racially discriminatory manner means that it is
  not just.
• It should therefore be abolished.

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Rebuttal (1) All That Matters is Guilt

• So long as the sentenced are guilty it makes no
  difference if its applied in a discriminatory
  manner.
• A more equal distribution may be desirable, but
  it wont make it more just.
• Irrational or capricious discrimination causes no
  one to be punished unjustly.
• Therefore it has no bearing on the justice of the
  punishment.
• Individuals are punished, not racial groups.
  Guilt is personal.
• The only question is does this person deserve
  execution?

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Rebuttal (2) ALL Punishment is Racist

• Even if its true that the death penalty does
  discriminate, so does the entire penal system.
• Racial minorities are more likely to be found
  guilty and receive harsher sentences than whites.
• If this argument works against the death penalty,
  then doesnt it work against ALL punishment?
• Shouldnt we abolish all punishment by this logic?

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Rebuttal (3) Punish Whitey Harder

• One way to balance the scales is to punish white
  convicts harder, a sort of affirmative action
  for punishment.
• Conversely, we could punish minorities less.
• This can seem demeaning (Oh, youre Mexican so
  you werent really as responsible as your white
  cohort.)

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4th Argument Against The Death Penalty is
Permanent

• Death is final. Once you put someone to death
  you can never take that back if you make a
  mistake.
• Executing an innocent person is the worst kind of
  miscarriage of justice.
• Of the 7000 people executed in the US between
  1900 and 1985, at least 35 were found to be
  innocent of capital crimes.
• Because we know that we make mistakes we
  shouldnt impose irreversible punishments.

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Rebuttal (1) Miscarriages are Unavoidable and
Worth it

• Miscarriages are unavoidable.
• The only way to guarantee we never make them is
  to abolish all punishment.
• Nearly all human activities, such as trucking,
  lighting, or construction, cost the lives of some
  innocent bystanders. We do not give up these
  activities, because the advantages, moral or
  material, outweigh the unintended losses.
  Analogously, for those who think the death
  penalty just, miscarriages of justice are offset
  by the moral benefits and the usefulness of doing
  justice

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Rebuttal (2) A Life Sentence is a Death Sentence

• Practically speaking a life sentence is a death
  sentence.
• Life expectancy in prison is much lower than
  outside of prison. Most lifers die in prison.
• The alternative to being executed for a crime you
  didnt commit (for the vast majority of convicts)
  is spending the rest of your life in prison for a
  crime you didnt commit
• and then dying anyway.

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Rebuttal (3) C.P. Decreases Miscarriages of
Justice

• Yes we make mistakes, but were much more likely
  to catch them if we keep the death penalty.
• If we eliminate the death penalty then capital
  cases will be commuted to life sentences.
• Life sentences have statistically much lower
  judicial oversight, fewer appeals and fewer
  advocates (charities, law-schools, etc.)
  petitioning for review.
• A far lower percentage of people with life
  sentences are exonerated, in comparison to people
  with death sentences.

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Rebuttal (3) C.P. Decreases Miscarriages of
Justice

• Thus, if all death sentences become life
  sentences the odds of an innocent person spending
  the rest of their life in jail increase
  exponentially.
• Ironically, if youre innocent your odds of being
  exonerated are much higher if you get a death
  sentence.

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5th Argument Against The Death Penalty Is Too
Expensive

• In California putting a prisoner to death costs
  taxpayers more than 114 million a year beyond
  the cost of incarcerating them for life.
• In Texas it costs three times as much to execute
  a prisoner than it does to imprison them forever.
• Those funds can be much more wisely spent on
• Other forms of deterrence (i.e.more police
  officers)
• Addressing the root causes of crime (i.e.better
  education, crime prevention programs, etc.)
• Victim restitution.

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Rebuttal Yes, but Why Is It So Expensive?

• Most of the cost comes from two places
• Maximum security on death row and
• The appeals process.
• (1) Isnt going to change
• It just so happens that most death-row convicts
  are amongst the worst of the worst.
• It will cost just as much to incarcerate them
  regardless of whether or not we execute them.
• (2) Is what prevents miscarriages of justice.
• All the money we save by reducing appeals when we
  commute death sentences to life comes at the cost
  of making it more likely that people will be
  punished for crimes they didnt commit.

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6th Argument Against The Death Penalty Is
Hypocritical

• It is hypocritical of us to kill someone as
  punishment for killing someone else.
• By killing a murderer, we encourage, endorse, or
  legitimize killing.
• Why do we kill people who kill people to teach
  people that killing is wrong.
• Mohandas Gandhi said of Lex Talionis An eye for
  an eye ends up with the whole world blind.

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Rebuttal ALL Punishment is Hypocritical

• This rationale would also work against all forms
  of punishment.
• Is it hypocritical to imprison a kidnapper
  against his will?
• Is it hypocritical to fine a thief for taking
  other peoples money?

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7th Argument Against The Death Penalty is
Uncivilized, Degrading, Cruel and Unusual

• Dostoyevsky said that the measure of civilization
  in a society can be judged by the way it treats
  its prisoners.
• The death penalty degrades the value of all human
  life by not respecting it as an absolute value.
• One of the reasons why killing is generally wrong
  is because it is vicious, brutal, dehumanizing
  and degrading.
• By executing killers we are lowering ourselves
  and our society to their level.
• The death penalty is the only form of corporal
  punishment still practiced in the U.S., and the
  U.S. is the only western country that still
  practices it.

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Reply This is an Article of Faith

• How can the death penalty be uncivilized given
  that most civilizations throughout history have
  used it?
• Saying the death penalty is degrading assumes
  that no crime merits death. This isnt an
  argument, its an article of faith.
• Remember Kant and Hegels argument that argued
  that far from being dehumanizing, capital
  punishment is the only way to respect a person as
  rational and responsible for their actions.
• Doesnt imprisonment, the taking of ones freedom
  and autonomy degrade more?
• Everyone dies, but not everyone has their freedom
  taken from them