# Death penalty: a personal dichotomy **URL:** \ **Category:** Great Debates\ **Created:** [October 13, 2004, 5:29pm UTC](https://boards.straightdope.com/t/death-penalty-a-personal-dichotomy/269039 "2004-10-13T17:29:21Z")\ **Posts on this page:** 20\ **Page:** 3
**Author:** ![Polycarp](https://avatars.discourse-cdn.com/v4/letter/p/82dd89/32.png) [@Polycarp](https://boards.straightdope.com/u/Polycarp)\ **Post date:** [October 16, 2004, 9:45pm UTC](https://boards.straightdope.com/t/death-penalty-a-personal-dichotomy/269039/41 "2004-10-16T21:45:15Z")
> [@Shodan](#): > > Ask yourself, “What system will allow the smallest number of innocent deaths?” > > Suppose that we wrongly apply the death penalty, and the number of innocent men executed equals X. However, we prevent repeat murders, and therefore the number of innocents whose lives are saved equals Y. > > If Y \> X, the death penalty is morally justified. > > Regards, > Shodan And what is the value of an innocent man’s life? And under what circumstances does he forfeit that value? Between you and me, and any other Christians that care to react, what might be the application of Romans 5:7-8 to your equation? These are not asked snidely, but in an effort to understand and reach common ground on this issue, which has taxed me as well. ---
**Author:** ![Lissa](https://avatars.discourse-cdn.com/v4/letter/l/85f322/32.png) [@Lissa](https://boards.straightdope.com/u/Lissa)\ **Post date:** [October 17, 2004, 12:26am UTC](https://boards.straightdope.com/t/death-penalty-a-personal-dichotomy/269039/42 "2004-10-17T00:26:26Z")
> [@Shodan](#): > > Your cite seems to say that 1.2% of released murderers commit another murder _within three years of release_. The percentage of murderers who re-offend over their lifetimes is likely to be higher. That may be true, but how can we execute people because of what they _might_ do? > [@](#): > > In other words, we know pretty definitely that at least 1.2% of the time, not applying the death penalty costs innocent lives. Therefore, it needs to be demonstrated that at least 1.3% of all those who have been executed were factually innocent. There we disagree. I don’t see a statistically tiny number of innocents executed - AFAICT, 0% - as a reasonable excuse for not killing convicted murderers This, to me, is the same as arguing that abortion saves lives because it removes potential murderers from the population pool. Simply put, I don’t believe that execution is ever justified. I do not believe that the state has a right to kill, regardless of the provocation. It’s pointless barbarity. > [@](#): > > True. I would hope, however, that those risks would overall be as low as we can manage. Which is accomplished by imprisonment. > [@](#): > > . . . Therefore, it isn’t possible that the DP cost more lives than it might have saved. It’s not a question of numbers for _me_. A death is a death. An execution is, in my opinion, just as morally reprehensible as a murder. > [@](#): > > That isn’t possible. If you support the death penalty, you bear some responsibility for those innocents who are executed (assuming there have been any). Their blood is on my hands (and every other citizen of the state). In this respect, it’s immaterial whether they were guilty or not. A man is dead, and he was killed in my name. > [@](#): > > If you don’t, you bear the same responsibility for those innocents whose lives could have been spared, but weren’t - 194 of them (at least) every year. No, I don’t. The person who killed bears the responsibility, and they alone. The justice system is not responisble for their personal failings. The criminal served his time and was released-- at that point he and the state are “square.” What he does after that is on his shoulders alone. Our justice system is by nature reactionary. We cannot imprison people for crimes they have not yet committed, nor can we hold them past their sentances because we feel that they may re-offend. My husband has agonized over releasing offenders that he feels are a danger to society, but he is held by the laws of the state and must obey. It’s the nature of the beast. It’s part of the price of freedom. Dress it up any way you like, but the death penalty is murder. We are willfully slaughtering a human being-- punishing an act which we hold reprehensible by preforming the same act on the perpretrator. Not only is it barbaric, but it is hypocritical. Perhaps we do it “nicely” surrounded by regulation, ceremony and structure, but we are still taking a human life. It has not been shown to have any real detremental effect, it adds unnecessary costs to our justice system, is arbitrarily and unfairly used, and it’s morally wrong. ---
**Author:** ![Cinnamon\_Girl](https://avatars.discourse-cdn.com/v4/letter/c/9d8465/32.png) [@Cinnamon\_Girl](https://boards.straightdope.com/u/Cinnamon_Girl)\ **Post date:** [October 17, 2004, 6:59am UTC](https://boards.straightdope.com/t/death-penalty-a-personal-dichotomy/269039/43 "2004-10-17T06:59:20Z")
> [@Lissa](#): > > …snip… > Dress it up any way you like, but the death penalty is murder. We are willfully slaughtering a human being-- punishing an act which we hold reprehensible by preforming the same act on the perpretrator. Not only is it barbaric, but it is hypocritical. Perhaps we do it “nicely” surrounded by regulation, ceremony and structure, but we are still taking a human life. > > It has not been shown to have any real detremental effect, it adds unnecessary costs to our justice system, is arbitrarily and unfairly used, and it’s morally wrong. Very nicely put, **Lissa**. ---
**Author:** ![Cinnamon\_Girl](https://avatars.discourse-cdn.com/v4/letter/c/9d8465/32.png) [@Cinnamon\_Girl](https://boards.straightdope.com/u/Cinnamon_Girl)\ **Post date:** [October 17, 2004, 7:00am UTC](https://boards.straightdope.com/t/death-penalty-a-personal-dichotomy/269039/44 "2004-10-17T07:00:49Z")
> [@Shodan](#): > > Why is one innocent execution so transcendentally important as to outweigh every other consideration - especially hundreds of other, equally innocent lives? Ask the family members of the innocently executed… ---
**Author:** ![colour\_wolf](https://avatars.discourse-cdn.com/v4/letter/c/edb3f5/32.png) [@colour\_wolf](https://boards.straightdope.com/u/colour_wolf)\ **Post date:** [October 17, 2004, 10:37am UTC](https://boards.straightdope.com/t/death-penalty-a-personal-dichotomy/269039/45 "2004-10-17T10:37:30Z")
> [@Shodan](#): > > Your cite seems to say that 1.2% of released murderers commit another murder _within three years of release_. > Assuming the 1.2% figure is accurate, there were [16,204](http://www.fbi.gov/ucr/cius_02/html/web/offreported/02-nmurder03.html) murders and non-negligent homicides in 2002. Ergo, a little more than 194 of those can be expected to be from repeat murderers. Thus, we would have had to execute at least 195 innocent people to make the death penalty do more harm than good. But there were only [71](http://usgovinfo.about.com/cs/censusstatistic/a/execution02.htm) executions in 2002. Therefore, it isn’t possible that the DP cost more lives than it might have saved. The website doesn’t say that 1.2% of murders are committed by repeat offenders. It says that 1.2% of released murderers commit another murder. Quite different things. ---
**Author:** ![erislover](https://avatars.discourse-cdn.com/v4/letter/e/71e660/32.png) [@erislover](https://boards.straightdope.com/u/erislover)\ **Post date:** [October 17, 2004, 7:30pm UTC](https://boards.straightdope.com/t/death-penalty-a-personal-dichotomy/269039/46 "2004-10-17T19:30:21Z")
> [@Shodan](#): > > My rationale is pretty close to the way you expressed it. I phrase it to myself more as the “least objectionable choice”, since there is no system devised by humans that can avoid innocent death altogether, since we will either unavoidably make mistakes in sentencing and execute some innocents, or unavoidably make mistakes in incarceration and some murderers will escape or be pardoned or kill while in prison. I agree that there is no way to avoid innocent death. But I feel it is important for an approximation of an ideal justice system to avoid incorporating the possibility of innocent death in its operations! > [@](#): > > But I don’t see how you can avoid the numerical comparison you describe. If you decide that even one wrongful execution is too much, you are unavoidably accepting that some non-zero number of wrongful victims of repeat murders is not too much. My objections were outlined above. It is not that one innocent death is one too many. It is that in the case of misapplied justice, restitution must be possible for the wronged party. There is zero chance of restitution in the case of a misapplied execution. This makes the system intrinsically unfair. > [@](#): > > But just as we cannot perfect the system of execution so as to absolutely guarantee that no innocent will ever be executed, we cannot devise a prison system so as to absolutely guarantee that no innocent will ever be killed by a repeat murderer. There will always be mistakes. No matter if we choose to err on the side of wrongful executions, or on the side of wrongful repeat murders, we are still going to err. Therefore, the morally relevant question is, which kind of error will have the least objectionable consequence? The question is, “Is this really an arbitrary choice?” You cannot even suggest that there are no innocent people willing to die in order to further justice, because such people already exist: law enforcement officers. If people are willing to give lives _for the cause of justice_, such a mechanism already exists. In one case, innocent deaths are possible because some people are willing to kill them, and short of literal thought police we have no way to stop that. In the second case, we have a way to **guarantee** no innocents will be killed: we simply refuse to implement the death penalty. I find it hard to think that the choice between these two alternatives is arbitrary, or even numerical. They are completely different in kind. One is an unfortunate consequence of humanity; the other is a deliberate attempt to create the possibility for other innocent deaths. To me, their qualitative differences _forbid_ any sound method of quantitative comparison. > [@](#): > > And as a result, innocent people were horribly tortured and maimed. Certainly nobody intended that. But nobody intends that innocents are executed either. I agree, and I do not wish to assign malice to people who are pro-death penalty. I would even wish to make it more clear that my objection to the DP is not ideological in the sense that I am anti-DP on its face; indeed, an ideal justice system is perfectly capable of meting out death sentences, and I have zero objection to that. But I find that keeping a justice system fair and able to adjust to the mistakes it must eventually make is vastly more important to a free country than reducing inncocent deaths to numerology. > [@](#): > > We know for a fact, therefore, that some number of innocents are suffering and dying because we did not execute murderers. I disagree entirely. We know for a fact that murderers exist and shall continue to exist, whether we kill them or not. I don’t believe for a second that we will run out of murderers. It is strange to consider innocent deaths at the hands of murderers and innocent deaths at the hands of the justice system qualitatively arbitrary, and then to later turn around and raise them high and suggest that _these particular deaths could be prevented_. What is so special about them? There is nothing special about them, except that they lie on one side of the inequality or the other. > [@](#): > > But, since the reinstatement of the death penalty in the US in 1976, no **factually innocent** person has **actually** been executed. The emphasis is important. I agree that the emphasis is important. But you’ll note that the party that executes and the party that determines “factual” innocence is the same. So of course we wouldn’t expect factually innocent people to be executed. I’d hope not! This is not a fact which champions the death penalty. It just shows that, recently, they’ve been a bit more diligent about determining factuality. Well, I hardly intend to applaud them for that. Nor do I think that some recent effort to listen closer to the possibility of exculpatory evidence would suddenly demonstrate the responsibility of having the authority to kill its own citizens. Surely there can be _no graver_ responsibility. It is not something we should hand over without a better track record than 28 years of “factual” innocents not being executed. Hell, I’d consider that the bare minimum they could do! > [@](#): > > True, but also true if we have no death penalty. I rob a liquor store and shoot the owner. I am therfore likely to be sentenced to life in prison with no parole. But that is the worst that can be done to me. I therefore have no incentive not to shoot the police who try to arrest me. Absolutely true. There is no merit to this line of argument for either of us, then. ---
**Author:** ![Shodan](https://avatars.discourse-cdn.com/v4/letter/s/9f8e36/32.png) [@Shodan](https://boards.straightdope.com/u/Shodan)\ **Post date:** [October 17, 2004, 9:05pm UTC](https://boards.straightdope.com/t/death-penalty-a-personal-dichotomy/269039/47 "2004-10-17T21:05:12Z")
> [@erislover](#): > > I agree that there is no way to avoid innocent death. But I feel it is important for an approximation of an ideal justice system to avoid incorporating the possibility of innocent death in its operations! Which, I would argue, is true of a system that employs the DP. It just includes more people than convicts in its considerations. > [@erislover](#): > > My objections were outlined above. It is not that one innocent death is one too many. It is that in the case of misapplied justice, restitution must be possible for the wronged party. There is zero chance of restitution in the case of a misapplied execution. This makes the system intrinsically unfair. Well, neither can you make restitution in the case of the victim of a repeat murderer. Take the case of Ed Wien. Sentenced to death, Governor Pat Brown commuted his sentence to life in prison with no parole (as one of his last acts before leaving office - he had been defeated for the governorship of California by Reagan). But what can be changed once can be changed again. His sentence was reduced from life in prison with no parole to life in prison, and he was therefore released. He got a job in the electronics industry, married, and Pat Brown sometimes pointed to him as an example of why the DP was so unfair - here Wien was now a productive, tax-paying citizen instead of dead. Then Wien kidnapped, raped, and murdered a woman. What restitution can we make to her? > [@erislover](#): > > I disagree entirely. We know for a fact that murderers exist and shall continue to exist, whether we kill them or not. I don’t believe for a second that we will run out of murderers. I am not saying that we will run out of murderers, certainly - only that we will reduce the overall numbers of wrongful deaths by preventing repeat murders. Even if this involves a non-zero risk of some wrongful executions. > [@erislover](#): > > The question is, “Is this really an arbitrary choice?” You cannot even suggest that there are no innocent people willing to die in order to further justice, because such people already exist: law enforcement officers. If people are willing to give lives _for the cause of justice_, such a mechanism already exists. In one case, innocent deaths are possible because some people are willing to kill them, and short of literal thought police we have no way to stop that. I don’t think anyone really volunteers to be the victim of a repeat murderer, anymore than anyone volunteers to be wrongfully executed. Both those “options” are equally arbitrary, to put it that way. > [@erislover](#): > > In the second case, we have a way to **guarantee** no innocents will be killed: we simply refuse to implement the death penalty. I disagree. The only thing we are guaranteeing is that _more_ innocents will die. > [@erislover](#): > > I agree that the emphasis is important. But you’ll note that the party that executes and the party that determines “factual” innocence is the same. I won’t comment on this, except to say that I have a higher opinion of the independent court system than that. I would say that the recent spate of DNA clearings is reasonable evidence that the system which determines factual innocence can reverse itself. Which, in my view, largely explains the absence of factually innocent executions. The system is working reasonably well, if you consider only the outcome of actual innocent executions. > [@erislover](#): > > I find it hard to think that the choice between these two alternatives is arbitrary, or even numerical. They are completely different in kind. One is an unfortunate consequence of humanity; the other is a deliberate attempt to create the possibility for other innocent deaths. To me, their qualitative differences _forbid_ any sound method of quantitative comparison. Interesting. I think I understand your point, but it strikes me as part of the preference for inaction over action. It is easier to do nothing - i.e. not execute those who deserve it - even if that inaction increases the count of innocent deaths. I understand your objection (and **Cinnamon Girl** ’s), but it seems more a matter of fastidiousness than of morality. The difference in weight assigned to a very small number of possible wrongful executions versus a much larger number of wrongful murders seems to be predicated on a desire to keep one’s own hands clean even if that means an increase in what we all agree must be avoided - wrongful death. I apologize if the above is offensive - I don’t mean to demean your motives. But I don’t see how it can be more moral that many innocents die than that one dies. Which is why I think this question is worth answering: > [@Polycarp](#): > > And what is the value of an innocent man’s life? And under what circumstances does he forfeit that value? I think the easiest way to determine the value of an innocent life is only to compare it (in this case) to other, like instances. It is extremely difficult to assign (for instance) a monetary value to a life. It is almost as difficult to decide how much other, non-murder-type crimes might be worth the loss of an innocent life. But it seems to me, that if you are willing to assign any value to a single innocent life, it is nearly self-evident that many innocent lives must be worth more than one. Therefore, if we agree (and we do) that even one wrongful execution is a horrid tragedy, then it seems to follow almost inescapably that 194 wrongful murders is worse. And thus if we are confronted with the choice, either to execute or not to, admitting that one is bad means that the other is worse. And therefore we have to choose the lesser of two evils. Certainly we can make efforts to avoid this dilemma. Either option is subject to improvements to minimize its drawbacks. But, it seems to me, sooner or later we will reach the point at which we cannot reasonably expect to make the system any more nearly perfect. The chance of a wrongful execution cannot be made zero. Neither can the chance of repeat murder. And these are both true even if we have a really, really good appeals system, or if we say “life in prison with no parole”, we really, really mean it. Because the appeals system cannot be made perfect - and neither can the prison system. > [@Polycarp](#): > > Between you and me, and any other Christians that care to react, what might be the application of Romans 5:7-8 to your equation? I have no idea. I am not being snide; I just don’t understand the application. Regards, Shodan ---
**Author:** ![erislover](https://avatars.discourse-cdn.com/v4/letter/e/71e660/32.png) [@erislover](https://boards.straightdope.com/u/erislover)\ **Post date:** [October 17, 2004, 10:29pm UTC](https://boards.straightdope.com/t/death-penalty-a-personal-dichotomy/269039/48 "2004-10-17T22:29:06Z")
> [@Shodan](#): > > Well, neither can you make restitution in the case of the victim of a repeat murderer. Of course not. The point of justice has never been giving restitution to victims of man-on-man crime. It is hard to see why the justice system should be _generally_ responsible for the acts of criminals. > [@](#): > > Take the case of Ed Wien. …He got a job in the electronics industry, married, and Pat Brown sometimes pointed to him as an example of why the DP was so unfair - here Wien was now a productive, tax-paying citizen instead of dead. > > Then Wien kidnapped, raped, and murdered a woman. > > What restitution can we make to her? Absolutely none. I guess I’m wondering why you think the justice system should make any to her. If criminal negligence can be proven, then we have the ability to try the system itself. > [@](#): > > I am not saying that we will run out of murderers, certainly - only that we will reduce the overall numbers of wrongful deaths by preventing repeat murders. Even if this involves a non-zero risk of some wrongful executions. > I don’t think anyone really volunteers to be the victim of a repeat murderer, anymore than anyone volunteers to be wrongfully executed. The difference is that we can control the justice system. We cannot control free men. Where we have the genuine ability to prevent innocent death, we should not take action, knowingly, to incorporate it into the system… or we are just as wrong as those that released Mr Wein. > [@](#): > > I disagree. The only thing we are guaranteeing is that _more_ innocents will die. Well, you would see it that way, apparently, since whether an innocent dies by the hand of the government or a serial killer is, apparently, of no particular consequence. To me, that makes the government a criminal. > [@](#): > > The system is working reasonably well, if you consider only the outcome of actual innocent executions. I would not trust my executioner any farther than I absolutely had to, given my opinions on the value of my own life. If I saw no reason to distinguish killings by the justice system from killings by criminals, I see no reason to employ people to pull the switch and put gang bangers behind bars… since their actions are not qualitatively different, to you. To me, they are qualitatively different, and so I feel comfortable seperating prison guards and kidnappers. If I stood where you seem to, I don’t believe I could see what the difference was. > [@](#): > > I think I understand your point, but it strikes me as part of the preference for inaction over action. It is easier to do nothing - i.e. not execute those who deserve it - even if that inaction increases the count of innocent deaths. That [in]action does not increase the count of innocent deaths. **Murderers** increase the count of innocent deaths. That is why we punish them. But it has nothing to do with the ease. Indeed, a widespread application of the DP seems the very definition of “ease”. > [@](#): > > The difference in weight assigned to a very small number of possible wrongful executions versus a much larger number of wrongful murders seems to be predicated on a desire to keep one’s own hands clean even if that means an increase in what we all agree must be avoided - wrongful death. I don’t give them relative weights. I don’t compare them. They can’t be compared without undermining justice as such. The government simply becomes the gang with the biggest number of recruits. ---
**Author:** ![ZombiesAteMyBrain](https://avatars.discourse-cdn.com/v4/letter/z/b4bc9f/32.png) [@ZombiesAteMyBrain](https://boards.straightdope.com/u/ZombiesAteMyBrain)\ **Post date:** [October 18, 2004, 1:45am UTC](https://boards.straightdope.com/t/death-penalty-a-personal-dichotomy/269039/49 "2004-10-18T01:45:09Z")
> [@qts](#): > > I actually missed this in my earlier reply. Children were, and still are, trained as thieves. As I stated in my OP, I have no problem with a lethal response when protecting property. Secondly, a post-pubertal child is perfectly capable of killing an adult. Thirdly, a child with a gun is all the more dangerous because they lack the maturity of judgement that an adult has. So, do you believe that property, any property, is more valuable than a person’s life? I can’t support the death penalty under any circumstances - the state should not kill people - and it makes it impossible to make things right if an innocent person is found guilty by the courts. ---
**Author:** ![clairobscur](https://avatars.discourse-cdn.com/v4/letter/c/839c29/32.png) [@clairobscur](https://boards.straightdope.com/u/clairobscur)\ **Post date:** [October 18, 2004, 8:55am UTC](https://boards.straightdope.com/t/death-penalty-a-personal-dichotomy/269039/50 "2004-10-18T08:55:36Z")
> [@Shodan](#): > > . One option bears the possibility of a very few innocent deaths (although that possibility does not seem to have been realized over the last thirty years or so). You keep insisting on the the point that no innocent has been executed in the US during recent history. So I must ask : how do you know this for a fact? More precisely, does american law allow for a posthumous retrial of people executed in the face of new evidence or not? Because the possibility of new investigations and a new trial would be the only way to know whether innocent people had been executed (the only possibility being the actual culprit being found and sentenced, which is way less likely than say, a living deathrow inmate asking for a DNA test, especially since nobody has any vested interest or legal obligation to search for the real murderer if justice has already been “served”). Lacking this option, one can only make assumptions. If people sentenced to death but not still executed have been found innocent (because they could still appeal, new evidences could be found, like in the DNA testing cases, etc…), the logical assumption would be that innocent people have been executed too, not the contrary, in the absence of any mechanism allowing to review the cases of executed people. ---
**Author:** ![clairobscur](https://avatars.discourse-cdn.com/v4/letter/c/839c29/32.png) [@clairobscur](https://boards.straightdope.com/u/clairobscur)\ **Post date:** [October 18, 2004, 9:19am UTC](https://boards.straightdope.com/t/death-penalty-a-personal-dichotomy/269039/51 "2004-10-18T09:19:50Z")
> [@Shodan](#): > > I would say that the recent spate of DNA clearings is reasonable evidence that the system which determines factual innocence can reverse itself. This spat is also a rfeasonnable evidence that without DNA testing, a significant number of innocent people would be executed. hence that before DNA testing existed, these people were executed. However, it doesn’t seem to strike you, since you stated there has been no wrongful execution during the last 30 years (so, before DNA testing was available) It seems quite disingeneous to me to use the fact that no _proven_ case of wrongful executions happened during the last 30 years when you know perfectly that since a method is available to find out, in _some_ cases, whether a sentenced person is actually innocent or not, a number of people have been found innocent. Why is it that you’re making the assumption that no innocent people has been executed before DNA testing was available, and no innocent people is currently executed when DNA t-esting ins’t an option. If X% of the people sentenced to death in cases where DNA testing is useful are found innocent, isn’t it logical to assume that a similar percentage of innocent people have been executed prior the advent of DNA testing, and a similar %age of people sentenced in cases where no DNA sample exist (it’s not like all murder cases can be solved by DNA testing) are executed too? > [@](#): > > Which, in my view, largely explains the absence of factually innocent executions. The system is working reasonably well, if you consider only the outcome of actual innocent executions. > Interesting. Why is it that you cling on the unreasonnable argument that since it can’t be proven that these people were innocent, it’s acceptable to assume that all of them were guilty, when you know perfectly that sentenced people are proven innocent when it’s actually possible to find out the truth. Your position on this issue seems really disingeneous to me. ---
**Author:** ![ZombiesAteMyBrain](https://avatars.discourse-cdn.com/v4/letter/z/b4bc9f/32.png) [@ZombiesAteMyBrain](https://boards.straightdope.com/u/ZombiesAteMyBrain)\ **Post date:** [October 18, 2004, 4:00pm UTC](https://boards.straightdope.com/t/death-penalty-a-personal-dichotomy/269039/52 "2004-10-18T16:00:55Z")
> [@clairobscur](#): > > You keep insisting on the the point that no innocent has been executed in the US during recent history. So I must ask : how do you know this for a fact? I don’t know how anyone could claim this as a fact after reading [http://www.thenation.com/doc.mhtml?i=20010108&c=1&s=sherrill](http://www.thenation.com/doc.mhtml?i=20010108&c=1&s=sherrill) [it’s quite a long article, but I think it covers the arbitrary application of the death penalty pretty well. > [@](#): > > This past June, researchers at Columbia University’s Justice Project completed a statistical study of death-penalty appeals that passed through the nation’s courts between 1973 and 1995. They found that 2,370 death sentences–seven out of ten handed down during those years–had been thrown out on appeal because of serious flaws in the trials: Perhaps the judge had given prejudicial instructions to the jury, or the prosecutor had suppressed evidence, or the cops had falsified evidence, or the defense attorney had been totally incompetent, or there had been some other equally unacceptable conduct. It was enough to make the authors of this monumental study conclude that the death penalty system is “wasteful and broken…collapsing under the weight of its own mistakes.” > > Right now the Columbia University group is trying to finish the job, plowing through the thousands of cases reviewed by hundreds of state and federal appellate judges since 1995. Its preliminary finding is that “the error-proneness and irrationality” shown in the original study “has not somehow evaporated in the succeeding four years…and may be getting worse.” > > The second major study was done by a crack team of reporters at the Chicago Tribune who probed the muddy underpinnings of justice in Illinois. They made the first comprehensive examination of all 285 death-penalty cases handled in that state since the penalty was restored twenty-two years ago. This was their general conclusion: “Capital punishment in Illinois is a system so riddled with faulty evidence, unscrupulous trial tactics and legal incompetence that justice has been forsaken.” In thirty-three cases the defendant was sentenced to die at a trial where he had an attorney who was disbarred or suspended at some time in his career for incompetent or criminal actions. In forty-six cases the prosecutor’s evidence relied heavily on a jailhouse snitch; in twenty cases the prosecutor’s case depended on a crime lab’s comparison of hairs–and both kinds of evidence are considered so unreliable that up-to-date courts treat them as bad jokes. And in thirty-five cases, a defendant sent to death row was black and the jury that condemned him was all white. > [@](#): > > In the infamous Texas case Herrera v. Collins, it declared that if a defendant has evidence showing his innocence, he has no right to a federal hearing unless he presented the evidence before the state’s statutory cutoff date (in Texas, that’s thirty days after the trial), unless the defendant presents a “truly persuasive show by clear and convincing evidence… that no reasonable juror would have found the defendant eligible for the death penalty.” > > Most legal scholars, reading between the lines, summarize Herrera as meaning it is not unconstitutional to execute an innocent man. > > The practical effect of Herrera and the AEDPA is seen in the execution of Gary Graham. He was convicted and sentenced to death for fatally shooting a man in a Houston grocery-store parking lot in 1981. He was convicted almost solely on the testimony of a woman who said she saw Graham that night, but only fleetingly, through the windshield of her parked car. Graham’s trial attorney conducted virtually no investigation and put on no witness during the guilt phase of the trial. > > In 1993, however, Graham got help from some real attorneys, who found that police lab tests showed that the gun taken from Graham on the night of the murder was not the weapon that fired the fatal bullet. The new attorneys interviewed two employees of the store who had seen the murderer and were certain it wasn’t Graham. Several of the original jurors came forward to state that they would not have convicted him if they had heard the testimony from the other eyewitnesses. > > Too late. Graham’s new evidence of innocence was offered after the mandatory cut-off date. He was executed this past June 22. Herrera and the AEDPA killed him. ---
**Author:** ![Shodan](https://avatars.discourse-cdn.com/v4/letter/s/9f8e36/32.png) [@Shodan](https://boards.straightdope.com/u/Shodan)\ **Post date:** [October 18, 2004, 5:09pm UTC](https://boards.straightdope.com/t/death-penalty-a-personal-dichotomy/269039/53 "2004-10-18T17:09:36Z")
> [@erislover](#): > > > [@](#): > > > > Well, neither can you make restitution in the case of the victim of a repeat murderer. > > Of course not. The point of justice has never been giving restitution to victims of man-on-man crime. It is hard to see why the justice system should be _generally_ responsible for the acts of criminals… > I guess I’m wondering why you think the justice system should make any… I don’t. I was responding to the idea that the DP is unjust because it cannot be undone, nor restitution made. The same argument can be made about the victim of a repeat murderer, and is therefore not useful in deciding what is the most just course of action. > [@erislover](#): > > The difference is that we can control the justice system. We cannot control free men. But we can control the actions of convicted murderers, by executing them. > [@erislover](#): > > Where we have the genuine ability to prevent innocent death, we should not take action, knowingly, to incorporate it into the system… or we are just as wrong as those that released Mr Wein. Exactly - just as wrong. If we fail to act, and don’t execute, we are wrong. > [@erislover](#): > > Well, you would see it that way, apparently, since whether an innocent dies by the hand of the government or a serial killer is, apparently, of no particular consequence. Essentially, yes. To be wrongfully executed is not worse than to be murdered. The two are both wrongful deaths, and therefore equivalent. Ergo, that system under which the smallest number of wrongful deaths occurs, whether by execution or murder, is the best, or least objectionable. > [@erislover](#): > > That [in]action does not increase the count of innocent deaths. **Murderers** increase the count of innocent deaths. That is why we punish them. And we could reduce the count of innocent deaths by executing murderers. But we don’t. It would be like having some measure we could take to reduce drunk driving deaths, but we don’t take it because we are afraid of locking up people who are actually innocent of drunk driving. You could continue to blame an increase in drunk driving deaths on drunk drivers, and you would be correct, as far as that goes. But the fact remains that we could reduce the total harm being done, but choose not to. In a life or death situation like murder, that strikes me as less just. > [@clairobscur](#): > > Why is it that you cling on the unreasonnable argument that since it can’t be proven that these people were innocent, it’s acceptable to assume that all of them were guilty, when you know perfectly that sentenced people are proven innocent when it’s actually possible to find out the truth. Because all of them were convicted in a court of law, and those sentences were upheld throughout the extensive process of appeals on every single legal point stretching over a period of years or decades. Not only have all of them been convicted beyond a reasonable doubt, but the most strenous efforts of anti-DP lawyers have been unable to establish their innocence. It therefore seems to me that the burden of proof shifts back to the anti-DP proponents who insist that some of them must be innocent. OK, which ones are, what evidence do you have that they are factually innocent, and why did the appeals courts fail to be convinced? In other words, when both sides are allowed to present a case, and testimony is sworn and under penalty of perjury, and witnesses are subject to cross-examination, and the presumption of innocence is in their favor, why did they fail to raise any reasonable doubt? > [@ZombiesAteMyBrain](#): > > The practical effect of Herrera and the AEDPA is seen in the execution of Gary Graham. He was convicted and sentenced to death for fatally shooting a man in a Houston grocery-store parking lot in 1981. He was convicted almost solely on the testimony of a woman who said she saw Graham that night, but only fleetingly, through the windshield of her parked car. Graham’s trial attorney conducted virtually no investigation and put on no witness during the guilt phase of the trial. Not exactly. There seems to be [more](http://ww.prodeathpenalty.com/graham.htm) to the story than is stated in your article. > [@](#): > > And in thirty-five cases, a defendant sent to death row was black and the jury that condemned him was all white. Please notice that I said “factually innocent”. Being condemned to die by a white jury is not definitive proof of innocence, especially since your quote does not make it clear if the thirtyfive defendents were actually executed or not. What I am talking about is people who were factually innocent, and actually executed. People on death row who are exonerated by DNA and so forth do not “count”. Because they have not suffered substantially more than they would if they had been sentenced to life in prison without parole, apart from the fear of death. If we are going to play dueling cites, I should make my presumptions clear. People who are convicted are no longer entitled to the presumption of innocence, and only evidence of **factual innocence** is important. I do not consider them to have been exonerated if they did really participate in the crime, but should merely have been sentenced to life instead of the DP. And evidence presented in court, and subject to cross-examination by the prosecution, means more - a lot more - to me than what a defense attorney says in the media a dozen years after the fact where the case on the other side is not presented. In other words, I am going to be a bit of a hard-nose, and not take the case for the defence at face value. Regards, Shodan ---
**Author:** ![ZombiesAteMyBrain](https://avatars.discourse-cdn.com/v4/letter/z/b4bc9f/32.png) [@ZombiesAteMyBrain](https://boards.straightdope.com/u/ZombiesAteMyBrain)\ **Post date:** [October 19, 2004, 12:50am UTC](https://boards.straightdope.com/t/death-penalty-a-personal-dichotomy/269039/54 "2004-10-19T00:50:22Z")
> [@Shodan](#): > > And we could reduce the count of innocent deaths by executing murderers. But we don’t. And if some of those so called murderers just turned out to have been innocent, after they were executed, by your logic that would just be too bad - but nothing to worry about. > [@](#): > > Because all of them were convicted in a court of law, and those sentences were upheld throughout the extensive process of appeals on every single legal point stretching over a period of years or decades. Not only have all of them been convicted beyond a reasonable doubt, but the most strenous efforts of anti-DP lawyers have been unable to establish their innocence. If you had read the whole article I cited before, you would have seen that many of the people convicted did **not** get a fair trial. Does this not even bother you? It therefore seems to me that the burden of proof shifts back to the anti-DP proponents who insist that some of them must be innocent. OK, which ones are, what evidence do you have that they are factually innocent, and why did the appeals courts fail to be convinced? > [@](#): > > What I am talking about is people who were factually innocent, and actually executed. People on death row who are exonerated by DNA and so forth do not “count”. Because they have not suffered substantially more than they would if they had been sentenced to life in prison without parole, apart from the fear of death. Do you think you would feel this way if **you** were wrongfully convicted, only to be finally freed on DNA evidence after having gone through the appeals process and spending years on death row - knowing you were innocent but being unable to prove it? Would you really feel that your years of suffering and deprivation of liberty ‘do not count’ - to use your own words? Here is another article which is just about innocent people who have been found guilty - if one of them was you or someone you know, would you really think you had got ‘justice’? [http://www.abanet.org/irr/hr/innocent.html](http://www.abanet.org/irr/hr/innocent.html) ---
**Author:** ![ZombiesAteMyBrain](https://avatars.discourse-cdn.com/v4/letter/z/b4bc9f/32.png) [@ZombiesAteMyBrain](https://boards.straightdope.com/u/ZombiesAteMyBrain)\ **Post date:** [October 19, 2004, 12:54am UTC](https://boards.straightdope.com/t/death-penalty-a-personal-dichotomy/269039/55 "2004-10-19T00:54:47Z")
> [@](#): > > It therefore seems to me that the burden of proof shifts back to the anti-DP proponents who insist that some of them must be innocent. OK, which ones are, what evidence do you have that they are factually innocent, and why did the appeals courts fail to be convinced? OOps, Sorry this part of my last post should also have been in QUOTES as it was written by Shodan, not me!! Is there any way to fix this? ---
**Author:** ![Shodan](https://avatars.discourse-cdn.com/v4/letter/s/9f8e36/32.png) [@Shodan](https://boards.straightdope.com/u/Shodan)\ **Post date:** [October 19, 2004, 2:03pm UTC](https://boards.straightdope.com/t/death-penalty-a-personal-dichotomy/269039/56 "2004-10-19T14:03:31Z")
> [@ZombiesAteMyBrain](#): > > And if some of those so called murderers just turned out to have been innocent, after they were executed, by your logic that would just be too bad - but nothing to worry about. Sort of. The idea that “it is nothing to worry about” is a distortion, of course, but since the overall number of wrongful deaths is reduced, the outcome is more just. We execute a thousand murderers, and thus prevent, say, 12 repeat murders. It turns out that one of the executed was factually innocent. Thus the number of wrongful deaths is 1. Or we don’t execute any of the thousand, and thus allow 12 murders. However, we spare the life of the one wrongfully convicted. Thus the number of wrongful deaths is 11. The second alternative is eleven times worse than the first. Which is the one to worry about most? > [@ZombiesAteMyBrain](#): > > If you had read the whole article I cited before, you would have seen that many of the people convicted did **not** get a fair trial. Does this not even bother you? Since none of them were executed, it does not seem to me that they suffered much more than they would have if sentenced to life without parole. In every instance cited, we _might_ have made a mistake and caused a wrongful death. But we didn’t - the system worked in correcting itself. The problem of unfair trials exists regardless of the use of the DP. And there are mechanisms in place to correct for this problem. Thus we have seen all the examples cited of where the system correctly prevents wrongful death by execution. We _could_ have made a mistake, but didn’t. In cases of wrongful repeat murder - such as Arthur Shawcross, Ed Kemper, Henry Lee Lucas, etc. - we _did_ make a mistake. But that mistake cannot be corrected - nothing can be done to bring their victims back to life. In the case of Jack Abbott, we made that mistake twice in a row. People are correct - the death penalty is irreversible. So is repeat murder. Killing an innocent person is wrong, and cannot be undone. Therefore, we should choose the option in which this happens the least. Because you are never going to have a perfect system either way. Sooner or later, if we execute enough people, we are going to kill an innocent one. No real evidence exists that this has happened yet, but no doubt eventually it will. The trouble is that it is not sooner or later that some equally innocent person will be murdered by someone who should have been executed - that has already happened, and continues to do so. We have a definite, clearcut evil happening now. If we act to prevent this, we have a small chance that something substantially less evil might happen later. Saying “no, I would rather see a few hundred die this year than take a chance that one might die sometime over the next fifty years or so” does not strike me as an enlightened choice. > [@ZombiesAteMyBrain](#): > > Do you think you would feel this way if **you** were wrongfully convicted, only to be finally freed on DNA evidence after having gone through the appeals process and spending years on death row - knowing you were innocent but being unable to prove it? Would you really feel that your years of suffering and deprivation of liberty ‘do not count’ - to use your own words? Probably not. But I am sure I would feel the same if I were sentenced to life without parole and later found to be innocent. And thus eliminating the death penalty does not address what you mention as a problem. Would you say that the “years of suffering and deprivation of liberty” of people serving life without parole also “do not count”? How about the “years of suffering” of those who lost family to repeat murderers? Certainly those who are imprisoned unjustly have suffered an injury, no doubt about it. But it does not matter all that much (as far as I can tell) whether they spend those years on death row or in maximum security. Unless you are convinced that the fear of being executed sometime in the next eight years or so is an overwhelming factor of suffering. To which I will respond that the increased fear of being murdered in prison by someone who was not executed - like Robert Stroud did, or the killer of Jeffrey Dahmer did - does something to offset that fear, if we do not impose the death penalty when we should. > [@ZombiesAteMyBrain](#): > > Here is another article which is just about innocent people who have been found guilty - if one of them was you or someone you know, would you really think you had got ‘justice’? > [http://www.abanet.org/irr/hr/innocent.html](http://www.abanet.org/irr/hr/innocent.html) Thanks for the article. You noticed, no doubt, that none of the cases listed describes anyone who was wrongfully executed. So no, they didn’t get justice, at least not right away. But they would also not have gotten justice if they had been sentenced to life without parole. So eliminating the death penalty would not address their issue. Except, of course, that interest and concern for injustice seems a good deal higher for convicts who are sentenced to death. I am not aware that there are a lot of groups who spend nearly the same energy trying to acquit people in prison for life without parole as for those on death row. No doubt if we eliminated the DP, those groups would spend an equal amount on trying to get lifers out. In which case, of course, the cost of life without parole would go even higher than it does for executions - more time for appeals, don’t you know. Regards, Shodan ---
**Author:** ![ZombiesAteMyBrain](https://avatars.discourse-cdn.com/v4/letter/z/b4bc9f/32.png) [@ZombiesAteMyBrain](https://boards.straightdope.com/u/ZombiesAteMyBrain)\ **Post date:** [October 19, 2004, 4:30pm UTC](https://boards.straightdope.com/t/death-penalty-a-personal-dichotomy/269039/57 "2004-10-19T16:30:25Z")
> [@Shodan](#): > > Sort of. The idea that “it is nothing to worry about” is a distortion, of course, but since the overall number of wrongful deaths is reduced, the outcome is more just. > > We execute a thousand murderers, and thus prevent, say, 12 repeat murders. It turns out that one of the executed was factually innocent. Thus the number of wrongful deaths is 1. And that ‘one’ person is just as much a murder victim - moreso in fact, as he was murdered by the state which is ‘supposed’ to provide ‘justice for all’. > [@](#): > > Since none of them were executed, it does not seem to me that they suffered much more than they would have if sentenced to life without parole. In every instance cited, we _might_ have made a mistake and caused a wrongful death. But we didn’t - the system worked in correcting itself. Here’s a site that lists people actually executed. [Capital Defense - IE Criminal Defense Attorney](http://capitaldefenseweekly.com/25casesdraft.html) The death penalty was abolished here in the UK largely because of the publicity given to one case where an innocent person was executed. Surely it’s better to sentence people to life without parole than to take the chance that the state will murder an innocent person in your name? ---
**Author:** ![Shodan](https://avatars.discourse-cdn.com/v4/letter/s/9f8e36/32.png) [@Shodan](https://boards.straightdope.com/u/Shodan)\ **Post date:** [October 19, 2004, 6:18pm UTC](https://boards.straightdope.com/t/death-penalty-a-personal-dichotomy/269039/58 "2004-10-19T18:18:01Z")
> [@ZombiesAteMyBrain](#): > > And that ‘one’ person is just as much a murder victim - moreso in fact, as he was murdered by the state which is ‘supposed’ to provide ‘justice for all’. And since he is outnumbered by all the other murder victims whose lives were saved by executing murderers, we have reduced the overall murder rate from twelve to one. Surely the state is providing better justice for more people if it reduces the number of innocent deaths by 82.5%. > [@ZombiesAteMyBrain](#): > > Surely it’s better to sentence people to life without parole than to take the chance that the state will murder an innocent person in your name? No, it’s not, and I have given my reasons why I think so. Because the chances of innocents being killed is greater if we don’t execute. Ergo, the death penalty is the more moral of the alternatives. QED. Regards, Shodan ---
**Author:** ![Cinnamon\_Girl](https://avatars.discourse-cdn.com/v4/letter/c/9d8465/32.png) [@Cinnamon\_Girl](https://boards.straightdope.com/u/Cinnamon_Girl)\ **Post date:** [October 19, 2004, 7:40pm UTC](https://boards.straightdope.com/t/death-penalty-a-personal-dichotomy/269039/59 "2004-10-19T19:40:28Z")
> [@Shodan](#): > > Sort of. The idea that “it is nothing to worry about” is a distortion, of course, but since the overall number of wrongful deaths is reduced, the outcome is more just. More just for whom? Certainly not the executed individual. Certainly not for his family. And not for the victim and their family for which an innocent man was executed. Or is executing somebody for that crime, even though it wasn’t the right person, supposed to make them feel like they got their justice? That execution certainly isn’t more just for society either because it didn’t accomplish anything other add to the list of victims, undermine confidence in the efficacy of the legal system, and cost taxpayers hundreds of thousands for the privilege of making such an error. All the while, the person actually responsible for the crime has gotten a free pass. Nobody’s looking for him anymore and he’s free to commit more crimes with the added confidence that you _can_ get away with murder. What happened to “and justice for all?” Is our pledge now meaningless? Is it not the government’s responsibility to assure that it acts in accordance with providing each and every one of its citizens with the opportunity for justice? The only justice available to a man wrongly convicted is exoneration. But once you’ve executed someone, he’s lost the ability to seek justice. ---
**Author:** ![Cinnamon\_Girl](https://avatars.discourse-cdn.com/v4/letter/c/9d8465/32.png) [@Cinnamon\_Girl](https://boards.straightdope.com/u/Cinnamon_Girl)\ **Post date:** [October 19, 2004, 8:39pm UTC](https://boards.straightdope.com/t/death-penalty-a-personal-dichotomy/269039/60 "2004-10-19T20:39:58Z")
> [@Shodan](#): > > We execute a thousand murderers, and thus prevent, say, 12 repeat murders. It turns out that one of the executed was factually innocent. Thus the number of wrongful deaths is 1. > > Or we don’t execute any of the thousand, and thus allow 12 murders. However, we spare the life of the one wrongfully convicted. Thus the number of wrongful deaths is 11. This quantifying has so many problems with it, it’s ridiculous. Let’s take your numbers and see what you’re missing. You’ll need to add some arbitrary number to your total of wrongful deaths because you failed to take into account the murders you haven’t prevented by allowing an innocent man to be executed for the crime of another who is still at large, still able (and likely) to commit further murders and will never be tried for that crime. How many would you like to add? How much more likely do you suppose it is that someone who gets away with murder once will commit murder again? Shouldn’t those victims be counted? How much more likely do you think the courts and prosecutors are going to be spend its time attempting to find the truth after they’ve already executed their man? The answer is not at all, which is why (as in the case of Joseph O’Dell) they destroy the evidence after the sentence has been carried out. What’s the point of continuing to ask the question? What could we possibly accomplish other than having some serious egg on our face if it turns out we were wrong? Case closed. [Previous page](https://boards.straightdope.com/t/death-penalty-a-personal-dichotomy/269039.md?page=2) [Next page](https://boards.straightdope.com/t/death-penalty-a-personal-dichotomy/269039.md?page=4)