“TEAM P” (John Doe & Jane Doe)
CX Affirmative-Ban the Death Penalty
Solvency
Page 1 of 11
Death penalty does not deter crimes.
Deterrence is not a legitimate justification for the death penalty.
Claire Finkelstein, professor of Law and Philosophy at the University of Pennsylvania, “A
Contractarian Argument Against the Death Penalty”, New York University Law Review, Volume 81,
2006.
Deterrence alone, however, does not provide a moral justification for the death penalty. There
are at least two reasons for this. The first we might call the "problem of torture." Suppose it
turned out that torturing a person before executing him had greater deterrent efficacy than
execution alone. Suppose, for instance, it saved eight additional lives over and above the eight
that would already be saved by the execution. Is the death penalty proponent prepared to endorse
torture in this case? Presumably not. The deterrence theorist, like everyone else, will want
restrictions on what it is permissible to do to a person, even if the deterrence rationale alone does
not itself imply those restrictions. If he accepts such restrictions in the case of torture, however,
he cannot rule out the possibility that these same restrictions also make the death penalty
impermissible. Later I will suggest that the relevant restrictions are best understood as having a
contractarian source. For the moment, it suffices to notice that even the deterrence theorist will
want some such restrictions on the applicability of his preferred rationale for punishment.
The death penalty can actually increase crime.
Rudolph Gerber, Judge for the Arizona Court of Appeals, “Death is Not Worth It” Arizona State
Law Journal, Volume 28, Spring 1996.
The death penalty directly contradicts this message. If human life is so sacred that it is never to
be taken, the argument also applies by the same logic to governmental killing of a criminal. The
death penalty exemplifies that killing is permissible, even desirable, by a powerful entity
responding to provocation. Statistics now illustrate this contrary brutalization effect. In addition
to the Dann and Graves studies mentioned above, a recent California study analyzes homicide
rates in 1992 and 1993 on a monthly basis and notably for a four-month period preceding and
following the executions of Robert Harris and Davis Mason. The average number of monthly
California homicides was 306; in the four months following Harris's execution, the average
number rose to 333, a nine percent increase. When the California murder rates during its
abolitionist and retentionist years are compared, average annual homicides were twice as high
during years in which executions occurred as in years when no one was executed. The
researchers conclude that the example of officially-caused death actually prompts homicidal
behavior. A recent ten-year international study of criminal violence similarly finds that, instead
of deterring, the death penalty tends to incite more violence than otherwise.
Punishing innocent people with death is a grave moral wrong.
Carol Steiker, Professor of Law at Harvard, “The Ethics and Empirics of Capital Punishment:
No, Capital Punishment is Not Morally Required: Deterrence, Deontology, and the Death
Penalty,” Stanford Law Review, Volume 58, 2005.
The strongest case for a retributive gap, of course, lies in the conviction and execution of the innocent a moral wrong that we have new reason to believe is disturbingly prevalent in our capital punishment
system. Although all victims of private murder are, by definition, innocent, there is a special moral
wrong in executing an innocent person, as one adds the horror of blame for heinous wrongdoing to the
taking of life. Sunstein and Vermeule have nothing to say about this problem, other than to claim that,
under the hypothetical conditions of deterrence to which they stipulate, the execution of the innocent
could not be much of a problem, as future murderers would not be deterred by the death penalty under
circumstances in which innocent defendants were likely to be punished instead of guilty perpetrators.
The media can foster discrimination in death penalty cases.
Katherine Corry Eastman, “The Progress of Our Maturing Society: An Analysis of StateSanctioned Violence”, Washburn Law Journal, Volume 39, Spring 2002.
Perhaps inadvertently, the media uses this oppressive dehumanization of poor and minority individuals
to foster the public's fear of crime by portraying them as faceless individuals who perpetrate crimes.
Thus, the media encourages the public to dismiss people of different ethnic backgrounds or of lower
economic stature as dispensable. Such societal disenfranchisement works to support the use of violence
as an oppressive force and is most clearly portrayed by the hype surrounding the use of the death
penalty.
Death penalty testimony can come from unreliable sources.
Jason Borenstein, Visiting Assistant Professor of Public Policy at Georgia Tech, “The Death Penalty:
Conceptual and Empirical Issues” Cardozo Public Law, Policy, and Ethics Journal, Volume 2, 2004.
The use of testimony from convicted criminals can also play a crucial part in a prosecutor's case against
a defendant. Yet the reliability of "jailhouse snitch" testimony should be viewed skeptically, especially
considering that the individuals offering such testimony typically receive a lesser sentence as a result of
providing it. In fact, some witnesses who have been called upon to testify against defendants were
actually the ones who committed the crimes in question.
Individuals that kill are not always completely responsible for their crimes.
Carol Steiker, Professor of Law at Harvard, “The Ethics and Empirics of Capital Punishment:
No, Capital Punishment is Not Morally Required: Deterrence, Deontology, and the Death
Penalty,” Stanford Law Review, Volume 58, 2005.
Though capital defendants have usually committed (or participated in) heinous murders, they very
frequently are extremely intellectually limited, are suffering from some form of mental illness, are in the
powerful grip of a drug or alcohol addiction, are survivors of childhood abuse, or are the victims of
some sort of societal deprivation (be it poverty, racism, poor education, inadequate health care, or some
noxious combination of the above). In such circumstances, it is difficult to say that these defendants
deserve all of the blame for their terrible acts; if their families or societies share responsibility - even in
some small measure - for the tragic results, then the extreme punishment of death should be considered
undeserved.
Society must accept its role in the causes of crime, and not focus only on the criminal.
Carol Steiker, Professor of Law at Harvard, “The Ethics and Empirics of Capital Punishment:
No, Capital Punishment is Not Morally Required: Deterrence, Deontology, and the Death
Penalty,” Stanford Law Review, Volume 58, 2005.
If the government is responsible for private murders that it fails to prevent by providing adequate
deterrence, is it not also responsible for private murders that it fails to prevent by providing adequate
poverty relief, support for families, education, health care, and initiatives to promote racial equality?
This recognition of the conflict between collective responsibility for crimogenic conditions and the
imposition of individual criminal responsibility for crime is best captured by a
New Yorker cartoon in which a jury foreperson delivers the following verdict: "We find that all of us, as
a society, are to blame, but only the defendant is guilty."
Social contracts that allow the death penalty should be rejected.
Claire Finkelstein, professor of Law and Philosophy at the University of Pennsylvania, “A
Contractarian Argument Against the Death Penalty”, New York University Law Review, Volume 81,
2006.
Each person enters into society because he fears for his bodily security. The security and life expectancy
of each person are increased if those who violate society's primary norms are punished, for this will
deter other potential criminals from violating those norms as well. Let us call the effects on the bodily
security and chances for longevity each person expects from a legal rule his "anticipated security." By
including the death penalty in the schedule of available penalties for the worst crimes, each individual
will increase his anticipated security, and so it may seem rational to select it. Each individual, however,
must also assess possible punishment from the standpoint of a person subject to that penalty. Thus, each
contractor must place himself in the position of a person sentenced to death. Now, if a person thinks it
likely that he will receive the death penalty, he will probably not see himself as advantaged by the rule
that authorizes its use. It is of course possible that a person subject to the death penalty would have been
murdered long before his execution if not for the death penalty's deterrent effect. A rational agent must
allow for this possibility. But since, under the benefit principle, a rational contractor will not choose to
gamble with rules of the basic structure, he will not base his decision on this contingency. Instead, he
will choose to guard against the possibility that he will be executed without adequate compensation in
deterrent efficacy. For in such a situation, his anticipated security will not be positive. A rational
contractor would therefore choose to reject the death penalty.
The death penalty is a critical tool for authoritarianism.
Katherine Corry Eastman, “The Progress of Our Maturing Society: An Analysis of StateSanctioned Violence”, Washburn Law Journal, Volume 39, Spring 2002.
Additionally, a central component of authoritarianism is the unquestioning obedience of an authoritative
figure. This blind obedience allows the follower to justify the acceptance of any set of rules or laws that
have been suggested or imposed by the authoritative figure. Such obedience is a form of "formal
authoritarianism." "Substantive authoritarianism," on the other hand, is not only the act of obeying laws,
but is also the act of using such laws to oppress or punish others, particularly members of minority or
powerless groups. Furthermore, in a substantive authoritarian scheme, blind acceptance of authority
enables those with power to oppress and thus, dominate weaker groups. Such authoritarian systems tend
to classify "human beings as monsters," a classification that justifies the systematic oppression of
individuals. Moreover, the use of the death penalty as a legal punishment plays a double role in an
authoritarian system: it legitimizes the public's moral panic and fear of crime, and serves to oppress
those groups feared as perpetrating crime.
The death penalty denies societal agency.
Carol Steiker, Professor of Law at Harvard, “The Ethics and Empirics of Capital Punishment:
No, Capital Punishment is Not Morally Required: Deterrence, Deontology, and the Death
Penalty,” Stanford Law Review, Volume 58, 2005.
From any normative perspective, punishment takes its justification from the distinctive human capacity
for agency. In retributive terms, punishment is justified as the product of human agency: the duty to
punish derives from the will of the wrongdoer in choosing to offend. In consequentialist terms,
punishment is justified in order to protect human agency from private threats. My version of the
deontological argument from human dignity recognizes that, in extreme forms, punishment as a practice
can impair some of the human capacities that are necessary for full agency and thus can affect the
necessary precondition for any justification of punishment. True human agency requires not only reason
and volition, but also distinctively human affective attributes, such as the ability to feel empathy,
compassion, pity, or love. By damaging or destroying human capacities to enter imaginatively into the
pain of others, extreme punishments impair us as social agents, free to will and choose our destinies in
an interrelated social world.
The death penalty is unjust because it is absolutely irreversible.
Jason Borenstein, Visiting Assistant Professor of Public Policy at Georgia Tech, “The Death
Penalty: Conceptual and Empirical Issues” Cardozo Public Law, Policy, and Ethics Journal, Volume 2,
2004.
If it could be established that the death penalty deters crime, the argument against the death penalty still
remains that since it is an irreversible mode of punishment, mistakes cannot be remedied. Thus, if an
innocent person was executed, the levied punishment cannot be changed and there is no measure for
correcting the harm done. Although one could argue that other types of punishments exact a profound
cost on wrongfully convicted individuals, such as taking away years of their lives that cannot be
returned to them, a wrongly executed person cannot be compensated in any fashion.
Deterrence justifies terrible atrocities.
Carol Steiker, Professor of Law at Harvard, “The Ethics and Empirics of Capital Punishment:
No, Capital Punishment is Not Morally Required: Deterrence, Deontology, and the Death
Penalty,” Stanford Law Review, Volume 58, 2005.
Suppose that we imposed, as punishment of the guilty, execution of offenders and execution of one of
their closest living relatives (mother, father, spouse, or child). There are plenty of good reasons to think
that such a punishment regime (call it "execution plus") would offer greater marginal deterrence than
execution of only the offender. Suppose we had reason to believe that "execution plus" was twice as
effective as ordinary execution (i.e., that it could prevent thirty-six murders, as compared to the eighteen
that Sunstein and Vermeule stipulate can be prevented by ordinary execution). We could understand the
practice of "execution plus" as punishment only of the defendant and as the sad but necessary sacrifice
of the relative. Wouldn't Sunstein and Vermeule's argument about our prima facie moral duties compel
us to accept the killing of two people, one guilty and one innocent, in order to save thirty-six? Why isn't
this an example of a "life-life tradeoff" that we ought to accept?
Deterrence justifies non-proportional punishment.
Carol Steiker, Professor of Law at Harvard, “The Ethics and Empirics of Capital Punishment:
No, Capital Punishment is Not Morally Required: Deterrence, Deontology, and the Death
Penalty,” Stanford Law Review, Volume 58, 2005.
Sunstein and Vermeule have a very puzzling answer to this problem. They insist that their argument in
favor of capital punishment for murder does not extend to cases of nonpremeditated homicide because in
such cases the tradeoff "is no longer an apples-to-apples comparison." They reason that because the
people whose lives would be saved by executions would be recklessly killed rather than intentionally
killed, their deaths are not equal to the intentional deaths that the government commits with executions.
This argument is hard to understand: Why isn't it just the lives that count, rather than the culpability of
the person who causes the death? Sunstein and Vermeule do not seem concerned about the reduced
culpability of juvenile offenders when they suggest that their analysis might compel the extension of the
death penalty to juvenile murderers.
And in other "life-life tradeoffs," the government does not count the loss of lives differently because of
the culpability of those that take them. Consider gun control. In calculating whether banning handguns
costs lives or saves lives, the government does not count lives differently that are lost to murder,
reckless homicide, accident, and suicide; it just counts lives. Or consider the government's hypothetical
choice between two courses of action during a riot or civil unrest: one that would prevent, say, ten
intentional murders, and one that would prevent, say, twenty accidental or reckless killings during a
stampede. Is there any reason not to treat this last choice as a "life-life tradeoff" in which the
government would properly "trade" the ten intentional murders in order to prevent the twenty reckless
killings?
Deterrence is not a legitimate justification for the death penalty.
Claire Finkelstein, professor of Law and Philosophy at the University of Pennsylvania, “A
Contractarian Argument Against the Death Penalty”, New York University Law Review, Volume 81,
2006.
Deterrence alone, however, does not provide a moral justification for the death penalty. There
are at least two reasons for this. The first we might call the "problem of torture." Suppose it
turned out that torturing a person before executing him had greater deterrent efficacy than
execution alone. Suppose, for instance, it saved eight additional lives over and above the eight
that would already be saved by the execution. Is the death penalty proponent prepared to endorse
torture in this case? Presumably not. The deterrence theorist, like everyone else, will want
restrictions on what it is permissible to do to a person, even if the deterrence rationale alone does
not itself imply those restrictions. If he accepts such restrictions in the case of torture, however,
he cannot rule out the possibility that these same restrictions also make the death penalty
impermissible. Later I will suggest that the relevant restrictions are best understood as having a
contractarian source. For the moment, it suffices to notice that even the deterrence theorist will
want some such restrictions on the applicability of his preferred rationale for punishment.
The death penalty can actually increase crime.
Rudolph Gerber, Judge for the Arizona Court of Appeals, “Death is Not Worth It” Arizona State
Law Journal, Volume 28, Spring 1996.
The death penalty directly contradicts this message. If human life is so sacred that it is never to
be taken, the argument also applies by the same logic to governmental killing of a criminal. The
death penalty exemplifies that killing is permissible, even desirable, by a powerful entity
responding to provocation. Statistics now illustrate this contrary brutalization effect. In addition
to the Dann and Graves studies mentioned above, a recent California study analyzes homicide
rates in 1992 and 1993 on a monthly basis and notably for a four-month period preceding and
following the executions of Robert Harris and Davis Mason. The average number of monthly
California homicides was 306; in the four months following Harris's execution, the average
number rose to 333, a nine percent increase. When the California murder rates during its
abolitionist and retentionist years are compared, average annual homicides were twice as high
during years in which executions occurred as in years when no one was executed. The
researchers conclude that the example of officially-caused death actually prompts homicidal
behavior. A recent ten-year international study of criminal violence similarly finds that, instead
of deterring, the death penalty tends to incite more violence than otherwise.
The death penalty creates a brutal society.
Carol Steiker, Professor of Law at Harvard, “The Ethics and Empirics of Capital Punishment:
No, Capital Punishment is Not Morally Required: Deterrence, Deontology, and the Death
Penalty,” Stanford Law Review, Volume 58, 2005.
Punishment is a public act; it is generally presented by the government as deserved by the
recipient, and that imputation of desert is generally accepted by the public; the imposition of
punishment tends to elicit gratifying emotions of satisfaction because the public condemnation
and suffering of an offender assuage to some degree the anger and hatred provoked by the
offense. Nothing in this characterization is meant as a normative justification of punishment
practices. I mean to take no position here on whether the "retributive hatred" that wrongdoing
inspires is a moral good, or whether the public satisfaction of vengeful urges offers a satisfactory
consequentialist defense of punishment. Rather, I mean simply to suggest that when the
purposeful infliction of extreme suffering is yoked with emotions of righteousness and
satisfaction, it will inevitably suppress our ordinary human capacities for compassion and
empathy. To be sure, the desire to punish may itself spring, at least in part, from compassion and
empathy for crime victims. And not every kind of punishment necessarily suppresses to any
great extent our capacities for compassion and empathy. But the inherent moral satisfaction that
attends the practice of punishment when it includes the infliction of death or other very extreme
forms of suffering does seem to permit, or even require, the weakening of important
psychological constraints against brutality. In this way, brutal punishment poses threats to our
human capacities distinct from and more insidious than other forms of brutality that might be
authorized or tolerated by the government because punishment has a distinctive connection to
powerful human emotions.
Capital punishment violates rights.
Eric Blumenson, “Killing in Good Conscience: What’s Wrong with Sunstein and Vermeule’s
Lesser Evil Argument for Capital Punishment and Other Human Rights Violations” New
Criminal Law Review, Volume 10, 2007.
For rational, self-directing beings, one's life must be one's own; and the law should endeavor to
guarantee this by placing limitations on what the state may do to a person. Under the rightsutilitarian
tradeoff regime the authors suggest, however, individuals have a very different legal
status, that of instruments that may be used for the collective benefit. If torturing some would
reduce torture overall, or executing drunk drivers would deter some greater number of fatal
vehicular manslaughters, the state would presumably be obligated to do so as well. Citizens are
no longer right-holders; instead, the state claims the right to decide some shall die so more can
live. The authors' minimize-injustice calculation takes no account of this injustice, which arises
when the state in particular undertakes such life-life tradeoffs.
Killing some people to save others is not justified.
Claire Finkelstein, professor of Law and Philosophy at the University of Pennsylvania, “A
Contractarian Argument Against the Death Penalty”, New York University Law Review,
Volume 81, 2006.
the deterrence theorist could distinguish torture from death, he would face a host of
familiar objections to the suggestion that it is permissible to kill a smaller number of people to
save a greater number. Killing the few to save the many is considered off-limits, because it is
using a person as a means to benefit another, rather than treating the person as an end in himself.
It is not, for example, permissible to remove the organs of one healthy person to save the lives of
eight others who need organ transplants. And if this is so, we cannot accept executing a criminal
for the sake of saving eight innocent lives. Even if one is inclined to reject the Kantian
formulation of the objection, most philosophers endorse the conclusion that it is not ordinarily
permissible to kill one to save several or even eight others. Since we do not think it permissible
to kill one person to save eight others, we cannot think general deterrence a sufficient moral
justification for the death penalty.
Deterrence is unlikely to work.
Carol Steiker, Professor of Law at Harvard, “The Ethics and Empirics of Capital Punishment:
No, Capital Punishment is Not Morally Required: Deterrence, Deontology, and the Death
Penalty,” Stanford Law Review, Volume 58, 2005.
As Sunstein and Vermeule acknowledge, the same data supporting their eighteen-lives-perexecution
figure also show that executions do not start saving lives as soon as they are
implemented. Rather, only when the number of executions rose above a substantial numerical
threshold - as they did in only six of the twenty-seven states studied - was a deterrent effect
discernible. In thirteen of the states studied, executions at a rate below the threshold actually
increased the murder rate, through what the researcher deemed a "brutalization effect" by which
capital punishment worked to devalue human life and affirm the legitimacy of retaliatory
violence. This data should surely give a consequentialist great pause. There is no way to
guarantee, either practically or morally, that a quota of murderers will be executed each year in
order to ensure that executions have the hoped-for deterrent effect rather than the opposite
brutalization effect. To use Sunstein and Vermeule's (favorite but flawed) hostage analogy, we
would surely not want to shoot a hostage taker if there were some significant chance that the
bullet would make him stronger or provoke his compatriots to kill even more hostages.
The death penalty distracts from areas that require real change to prevent crime.
Rudolph Gerber, Judge for the Arizona Court of Appeals, “Death is Not Worth It” Arizona State
Law Journal, Volume 28, Spring 1996.
Death penalty proponents assume an efficacy for capital punishment that does not exist in fact.
No empirical support in the extensive research literature exists for this expectation. The contrary
now seems more likely: the death penalty fosters killing attitudes and a culture of brutality.
Invoking capital punishment, whether for deterrence or pure vengeance, also diverts attention
from real solutions to crime like controlling education, alcohol, drugs, and weapons.
Unfortunately, our political culture now finds it easier to flaunt an impotent death penalty than to
pursue workable ways to reduce crime. Capital punishment offers a simplistic placebo for a
complex phenomenon of which an uninformed public is both frightened and politically gullible.
Its continued invocation not only suggests a false remedy but also sends a contradictory message
about the value of life. It is an expensive placebo which an enlightened public should no longer
swallow.
The expense of capital punishment risks lives.
Carol Steiker, Professor of Law at Harvard, “The Ethics and Empirics of Capital Punishment:
No, Capital Punishment is Not Morally Required: Deterrence, Deontology, and the Death
Penalty,” Stanford Law Review, Volume 58, 2005.
On a grander moral scale, preventing murders is only one way in which the state protects the
lives of its citizens. It does so also through public health policies, environmental protection,
workplace safety regulation, and the like. If the dollars spent on an execution that would prevent
eighteen murders could be spent to prevent an equal number of people from dying in workplace
accidents or from AIDS without violating any categorical moral prohibition, why should a
threshold deontologist agree that any catastrophic threshold permitting violation of such a moral
prohibition has been met? Given the costliness of the administration of capital punishment, it
seems unlikely that a deontologist would ever properly conclude that the marginal deterrence
afforded by executions so far outweighed other possible savings of lives with the same dollars so
as to cross some catastrophic threshold.
The death penalty does not fit within the scope of legitimate self-defense.
Katherine Corry Eastman, “The Progress of Our Maturing Society: An Analysis of StateSanctioned Violence”, Washburn Law Journal, Volume 39, Spring 2002.
The best illustration of "justified action" is the use of force in self-defense. When a person
defends himself or herself with force that violence may be justified as a necessary reaction to
danger. The conduct is considered legitimate because the consequence of harm is immediately
apparent. If the individual had not reacted, he or she would have been killed or maimed. Capital
punishment, however, does not fall within this definition of legitimate violence because it is not
an immediate response to a threat of harm. Rather, it is a contemplated act, thought out over a
period of years that occurs within a structured set of rules. Furthermore, a death sentence
proposes a violent act that would occur at some uncertain time in the future to punish an
individual for an act that happened some time in the past. Thus, this act of killing appears to be
an expression of illegitimate control rather than an act of self-preservation.
Even DNA testing is insufficient for certainty in capital cases.
Jason Borenstein, Visiting Assistant Professor of Public Policy at Georgia Tech, “The Death
Penalty: Conceptual and Empirical Issues” Cardozo Public Law, Policy, and Ethics Journal,
Volume 2, 2004.
To begin, there is not uniform agreement among the courts in terms of which types of DNA
techniques are admissible. Courts have disagreed concerning what constitutes appropriate DNA
testing procedures. Further, the use of DNA in cases is only as good as the evidence gathered and
the lab technicians and forensic specialists that test it. DNA evidence at a crime scene can
Deterrence is scientifically impossible to prove.
Carol Steiker, Professor of Law at Harvard, “The Ethics and Empirics of Capital Punishment:
No, Capital Punishment is Not Morally Required: Deterrence, Deontology, and the Death
Penalty,” Stanford Law Review, Volume 58, 2005.
This response ignores the fact that analysis of the "data" that we have about capital punishment is
simply one way of generating knowledge in the world, and an extremely flawed one at best. We
have not been and never will be able to verify the deterrent effect of executions by conducting a
"controlled" scientific experiment, which would randomly assign either execution or some term
of years to similarly situated defendants in similarly situated jurisdictions. Rather, we have
simply added the techniques of multivariate regression analysis, which can only crudely control
for an enormous variety of possible confounding variables, to other ways of generating
knowledge about deterrent effects.
Deterrence is not sufficient to prove a claim of justice.
Claire Finkelstein, professor of Law and Philosophy at the University of Pennsylvania, “A
Contractarian Argument Against the Death Penalty”, New York University Law Review,
Volume 81, 2006.
Of course the deterrence theorist might try to explain the significance of guilt in deterrence terms
as well. He might, for instance, argue that putting innocent people to death would erode the death
penalty's deterrent efficacy. If people were executed at random, a person would have no more
reason to fear execution in the wake of having committed a crime than he would were he
innocent. The problem with this answer, however, is obvious: By his own lights, the deterrence
theorist only needs the perception that the death penalty is being used as punishment for the
guilty. He must therefore be ready to adopt punishment of the innocent if that would prove the
most expedient deterrent. It follows that the deterrence theorist must either abandon the
requirement that punishment be used only on the guilty, or admit that deterrence alone is not
sufficient justification for the death penalty and that it must be supplemented with some further
principle in a more complicated mixed theory.