The Death Penalty
Van den Haag, Bedau, and
Liebman et. al.
Van den Haag, "A Defense"
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Ernest van den Haag was a prominent retentionist.
In this piece, he attempts to rebut many arguments
made by abolitionists.
These claims concern questions about: racial
inequalities in DP sentencing; the problem of
irreversibility; deterrence; cost; symbolism; human
dignity.
As becomes clear, vdH is essentially a retributivist.
When the chips are down, his position is that DP is
a just form of retribution for the most serious
crimes. For him, other considerations just don't
matter.
Inequalities in Sentencing
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As vdH observes, DP is a rare sentence for the
crime of murder. In an average year, there are
about 20,000 homicides, but on average over the
last 20 years fewer than 300 people are given DP.
There is substantial evidence that race plays a
significant role in those small number of cases
where there is a possible sentence of death.
 This is true not only in verdicts, but especially in decisions
about which defendants to seek DP against.
 Black people who kill white people are the likeliest to be
considered to be "DP eligible" and are the likeliest to
receive DP.
So What?
VdH doesn't dispute these statistics, rather
he argues that they don't matter.
 He argues instead that the question of the
justness in distribution of something is
independent of its value (moral or
otherwise).
 That is, if DP is morally justified, it doesn't
matter if it is imposed unfairly or unjustly.
We should, he thinks try to impose it fairly
and justly, but the fact that we don't doesn't
make it immoral.
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Miscarriages of Justice?
VdH makes a similar point in response to
concerns about executing innocent
persons.
 He recognizes that there is some likelihood
that at one time or another, innocent
people have been executed.
 He just doesn't think that it matters. Many
human activities come at the cost of some
innocent lives, but society still engages in
them because the benefits outweigh this
cost.
 He thinks DP is one such activity.
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Deterrence
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A popular retentionist argument is that DP
deters possible future murderers more
effectively than other forms of punishment.
However, more than 50 years of social
scientific research has failed to demonstrate
this.
VdH is undeterred by this failure, insisting that
despite the lack of evidence he believes that
there is a deterrent effect, and even if there
isn't, DP is justified on retributivist grounds
(though he doesn't provide an argument for
this).
Costs, Symbolism and Degradation
These last issues are much less weighty on vdH's
account than the previous.
 He dismisses the cost concern by insisting that
concerns of justice always outweigh financial
concerns.
 He responds to a symbolic argument like
Nathanson's by insisting that the symbolic
significance is trivial.
 He addresses concerns about the DP and human
dignity by invoking Kant and Hegel, and by
arguing that the murderer brings the degradation
on themselves (retributivism).
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Bedau, "The Case Against the Death
Penalty"
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In this essay, Bedau lays out the ACLU's argument against
the DP.
Though we are not given the argument in the reading, I
summarize it here:
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DP is cruel and unusual.
DP is morally equivalent to murder.
DP denies due process. A dead person can't ask for a new trial if proof of their innocence
appears.
DP violates 14th amendment's equal protection clause. Applied arbitrarily.
Gregg model of jury directions ineffective. Merely covers over prejudice and bias.
DP sends message that taking someone's life can be justified by pragmatic concerns.
DP is political, distracts from the real causes of and solutions for crime.
DP is wasteful.
DP is barbaric.
------------------------Concl.: We should get rid of the DP
What We Do Get
In the selection from this essay reprinted
in the text, Bedau expands on the basic
argument by considering three issues
important to a consequentialist
treatment of DP: deterrence, fairness in
administration, and irreversibility.
 In each case, he argues that a
consequentialist should favor abolition.
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Deterrence, Pt. 1
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Deterrence requires prompt and consistent
implementation of deterrent. DP cannot be
administered in this fashion.
 ~2% of people convicted of criminal homicide are
sentenced to death
 Mandatory DP laws (Florida type) are unconstitutional.
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Murder is either premeditated or it's not. If it is, the
people plan to (and think they will) get away with
it, thus deterrence is not an issue. If not, then once
again it seems unlikely that deterrence would be
an issue. Ditto with ideological murders and
murders connected to the drug trade.
Deterrence, Pt. 2
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If severe punishment deters crime, long-term
imprisonment is sufficient. Even studies that show
deterrent effects show no difference between life
sentences and DP.
 States with DP do not have lower homicide rates than states
without.
 Potential coarsening effect.
 No difference in rates of assault and murder of police officers
between states with and without the DP.
 No difference in rates of assault and murder of inmates and
prison personnel between states with and without the DP.
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Thus, Bedau concludes, there is no evidence that
DP is a deterrent and much evidence to conclude
that it isn't.
Unfairness, Error and Barbarity
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Bedau surveys the findings on racial bias, noting most
significantly that examination of the race of the victim of
those people sentenced to death reveals substantial bias
against killers of whites.
Bedau recounts the stories of nine men falsely convicted and
given the death sentence to underscore the fact that we are
fallible creatures, bound to make errors. Of course, with the
DP, each error is a human tragedy.
Bedau highlights how inconsistent our practice is with those
of our allies and cultural partners around the world. The U.S.
consistently ranks in the top five in number of executions
carried out worldwide with Iran, China, Iraq, Saudi Arabia
and Pakistan. Hardly enviable company.
Liebman, et. al., "Error Rates"
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In this report from 2000, the authors review all
of the capital sentences handed down in the
U.S. from 1973-1995 with the aim of
evaluating the "overall success rate" of this
sentencing.
A "success" would be a sentence that
withstood judicial review at both the state and
Federal levels.
What they found is that the success rate is
remarkably low, and that in fact, a massive
number of these sentences are eventually
overturned due to serious error by the
sentencing courts.
Findings
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The central findings of the study are listed
beginning on p. 383.
Notable among them are:
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41% error rate determined by state courts of appeal.
40% error rate determined by Habeas Corpus
review done by Federal Courts.
Overall error rate for the entire system during these
years was an astounding 68%.
This is not getting better. The rates of reversible
error have been fairly constant over the period of the
study.
Implications
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DP is not worth it. Time and time again retentionists have tried
to address the problems highlighted by the study without
appreciably decreasing the error rate.
This is bad for victim's families, who have to go through the long
agony of a trial and appeal process without the closure of a final
and secure sentence.
It's bad for the system, which spends large amounts of its
precious and limited resources in what is frequently a fruitless
effort.
It's bad for the society, whose confidence in the judicial system
is constantly being undermined by these repeated failures of
justice.
We wouldn't tolerate anything like this error rate in any other
situation, we should not tolerate it here. The authors think we
should abolish DP.