The Death Penalty and Reasonable Oversight

The discussion on risk-benefit analyses here and the previous discussion on the cost of safety here got me thinking. How foolproof does capital punishment have to be in order to be ethically justifiable? Is it okay if an innocent man–or an improperly sentenced man–is put to death once in a while, as long as the system is usually reliable? Where do you draw the line?

I recall reading in Closed Chambers that Justice Rehnquist has never voted to approve a stay of execution, no matter the circumstances, because he believes that the state courts and their appeal process are sufficient to ensure the guilt of each death row inmate. Now, that’s a huge assumption, especially in light of the forty or so prisoners that have been freed from death row in recent years because of advances in DNA testing. I think it’s safe to say that the system is fallible, especially at the state level. So is it possible to ensure that no one’s being wrongfully executed? If not, should we continue with an imperfect system, with the knowledge that some people will inevitably slip through the cracks? How many innocent men (or men whose due process rights have been significantly violated) is it okay to kill, as long as we usually get the right guy?

Let me add that I understand the Eighth Amendment argument propounded by Brennan, Marshall, and others, that the death penalty itself constitutes cruel and unusual punishment, no matter the guilt or innocence of the convicted. But for the purposes of this question, I want to hear from those who believe (as I do) that the death penalty isn’t intrinsically wrong. Does anything justify taking the life of an unjustly sentenced man?

Without wanting to state the obvious, it depends on your ethical system.

If for example you believe it is morally right to execute the guilty, you would have a different view to someone who believes it is justifiable on the grounds that it deters others. (I believe neither BTW)


No, nothing justifies the taking of an innocent man’s life.

But with the advances in DNA testing, as stated in the OP, can it be safe to say that it would be more difficult to wrongly convict someone? I mean, since DNA testing is freeing wrongly convicted prisoners, then DNA testing should also be convicting guilty criminals.

With respect, I don’t believe you necessarily would have a different view. Could you explain further? Just because someone thinks it’s morally right to execute the guilty doesn’t automatically mean that they’d take a more relaxed view of the possibility of executing the innocent.

I don’t think it’s fair to take any innocents life.
Period. At least if a person is placed in prison, s/he
might have some possibility of proving her innocence, despite the near impossibility of the feat. Illinois happens to have a lovely under .500 batting for sentencing the correct people to death row. Whoops. That might be fine in the NL, but is a pretty piss-poor record for society.

OK, well then, let’s suppose this as an analogy. We have this hostage crisis in the Philipines. Typical, bad guys grab good guys, make demands, perhaps money changes hands, perhaps political prisoners are released, perhaps nothing.
How about, for the good of the world, we just blow to hell everyone in the compound. Every last captive and captor.
Would make those crazy hostage takers think twice next time wouldn’t it?

Obviously, I am not for this, but in the long run it might be good policy. Kill 20 or 30 innocents now, establish a consistent way of dealing with hostage takers, and perhaps
this will save the lives of hundreds or thousands further down the road.

Now what do you think of this?

That’s a fair point. What about people who are guilty, but whose rights to due process have been violated in the sentencing process? Cases like that are, I dare say, far more common than death row inmates who are actually not guilty of the crime. Does anything justify taking the life of a guilty man whose sentence shouldn’t have been death?

Although capital punishment is in some ways extremely satisfying emotionally, it is a travesty as practiced. Perhaps 6 weeks ago there was a segment on one of the cable channels (Discovery, TLC, or History) that profiled one inmate freed after 9 years by DNA evidence. His cell was directly above the gas chamber, and he endured years of abuse at the hands of other inmates and the guards because the crime he was convicted of was the rape/murder of a child. The simple fact of the matter is that if it could happen to him, it could happen to you, me, or anybody else. (Well, anybody else who isn’t wealthy.) We also need to recognize that there are bulletproof cases where guilt is never questionable, that beg for the death sentence.

IMHO the only way to proceed is to raise the bar of evidence. “Beyond Reasonable Doubt”, as we can see, is far too low a standard when a man’s life is at stake. The decision to execute a criminal should be made only on the strongest physical evidence, never on mere witness testimony. Strict evidentiary clauses should be added to the sentencing statutes that.

I do not think capital punishment in anyway is justifiable. Whether the person is innocent or guilty.
My question is this, isn’t there a double standard? I mean think about it. The Government has decided that it’s wrong to kill others. Good, I think most people believe it. So, how do we punish them? By killing them through state sanctioned murder. Do two wrongs make a right?
I think it would be far more appropriate to send the criminals away for life with no chance of parole. Does anybody think prison is a pleasant experience? It’s not, and I bet it’s far more of a punishment than execution.
I have also not seen real evidence that the death penalty acts as any kind of deterent.
So basically it’s cruel and unusual punishment, it’s hypocritical, and it wastes time and money.
So, how is the death penalty at all a good thing?

In answer to your points:

No, there is no double standard. The state is sanctioned to do all sorts of stuff private citizens can’t do. I can’t collect taxes from you, I can’t kill you, I can’t put you in prison. We don’t allow kidnapping and hostage-taking, but we do put people in prison.

Secondly, I think the death penalty ** would ** be a deterrent if there were a more direct connection between the crime and the punishment. As things stand now, with the average excecution taking place about fifteen years after the crime, there is no real connection. If execution were swift, it would be a deterrent, IMHO.

Lastly, first you state that prison is a greater hardship and punishment than the DP, but then you backtrack and say that the DP is cruel. Wouldn’t that then make life imprisonment crueler?

Zev Steinhardt

I’d like to just step in here and reiterate that the question posed by the OP wasn’t about the morality or efficacy of the death penalty in general, but rather the extent to which an imperfect system of capital punishment can be ethically justified, if it’s foreseeable that innocent or wrongly sentenced people could die. Just so we don’t get too far off track, and have trouble finding our way back. :smiley:

Gadarene: To the extent that you are seeking an absolute ethical standard by which to draw the line on the reliability of the death penalty, I have to argue that you will be, by definition, unsuccessful.

I assert that there is no basis for determining ethics other than the survivability and prosperity of the society that implements them. Ethics are defined by our collective agreement; in particular, the ethics of the death penalty are defined by the legistlative and judicial processes.

Having not read Closed Chambers, I would venture to guess that Rehnquist has never voted to approve a stay of execution because he believes that the state trial and appeal process defines guilt or innocence. The terms have no meaning outside the legal process. A trial is the standard: It exists to define guilt or innocence, not match it against a higher, extrinisic standard.


No. Anyone who believes it is okay must be willing to have it happen to him as well. He must not complain if this ever happens to him, or he is a hypocrite.

SingleDad: I’m not seeking an absolute ethical standard on the matter; I’m asking the Teeming Millions where they stand. For my part, unless we could be reasonably assured that the system would put to death only those a)who were guilty of the charged crime, and b)whose due process rights had not been violated, then I wouldn’t think the death penalty would be ethically justifiable, given its irreversible nature.

I agree with you that the trial and appeal process is the standard which defines guilt or innocence, but the Supreme Court is the ultimate arbiter of matters constitutional, and surely has a place in rendering final judgment on state and district appeals. The fallacy in Rehnquist’s actions comes not because he’s failing to seek an extrinsic standard, but because he’s abdicating his role in assessing the standard which has been set. State courts, appeals courts, circuit courts make mistakes–no less so when the case is of a capital nature.

Again, I’m not seeking a definitive ethic to the death penalty beyond that which has been set by existing processes; I’m simply asking whether cost-benefit analyses can, in the minds of posters here, be conscionably applied to capital punishment.

SingleDad: Looking back on my post, I feel I need to clarify something. I’d argue that trials exist to establish guilt or innocence, rather than to define them. That is, a court can find someone (let’s call him Bob) guilty of murder, and the appeals courts and the USSC can uphold that finding. Bob is then guilty, in the eyes of the law, and will go to prison. But if a subsequent DNA test conclusively proves that Bob could not have committed the crime in question, it’s likely that Bob will go free and the guilty verdict will be vacated. Does this mean that the court has “redefined” his guilt? Or does it mean that an objective standard of guilt exists, the criteria of which are set by the law but not defined by the trial process? I’d say the latter.

You said, “A trial is the standard.” I argue that the law is the standard, and the trial a mechanism by which cases can be judged according to that standard.

I don't view the execution of a murderer as murder just like I don't view the incarceration of a kidnapper as kidnapping. Murder is the immoral or illegal act of killing another human being. At least according to the moral code I live by killing a human being for the crime of murder is not at all immoral.
 Our laws say that murder is wrong. It doesn't say that homicide is necessarily wrong.


It’s not about two wrongs making a right. This is irrelavent.

The function of the death penalty is not about revenge or vengeance, but rather, to rid the of the problem. If you look at the issue morally, then yes, it would probably be wrong to execute a criminal. However, functionally, it makes absolute sense.

What good is it to keep a man alive who continually rapes and kills anyone he can get his hands on? He would only be hurting society by killing its members. So society must kill him to preserve themselves. Taking one life saves many.

That said, one can argue that he can just be sentenced to prison for life without parole. But I ask again, what good can come of that? Taxpayer money must be spent on this man to keep him alive. Where’s the logic in that? Society is spending money on a man who can never contribute anything back to them.

I believe that there are crimes and criminals that are more than worthy of the death penalty. I certainly would not mourn the loss of Bundy, Gacy, or Dahmer. I do not think the death penalty is, in and of itself, cruel and unusual.
My problem with the death penalty is not on those grounds.

I would not want to trust my life to mental misfits that populate the juries, bars and benches of our legal system.
Certainly not the best and brightest. (BTW, I start jury duty next week. Sends a chill up your spine, don’t it?)

The system is fallible. Far too fallible to left in the hands of people who may have a politcal agenda, people with an axe to grind, and people too stupid to get out of jury duty. There have been literally hundreds of people falsely convicted of capital crimes. Not to mention LAPD’s ‘Rampart’ scandal, where cops planted evidence and perjured themselves.

BTW, wasn’t it Rehnquist that said ‘Innocence is no bar to upholding a conviction.’?

(sorry it’s taken a while to get back to this)

What I meant here was that you might have two (or more) pro death penalty moral codes.

Code A says that not only is it acceptable to kill the guilty, but it is important to do so. This sort of person would want to weigh up “how many guilty people are we failing to execute by settting the bar for execution too high”.

Code B says that killing the guilty is acceptable, it is only important insofar as it has useful effects. This sort of person would be more concerned by executing innocent people since the chance that you will be executed if innocent cannot have a disincentive effect upon crime.

Crudely speaking, there are three lines of pro-capital punishment) thought:

  1. There is an obligation to kill the guilty
  2. There is no obligation to kill, but it is not wrong to do it and there may be instrumental value in doing so
  3. Killing is morally bad, but the incentive effects are sufficiently large as to make execution the lesser of two evils.

Naturally, all these lines of thinking also require that one is happy to give the state the power to kill.


The only moral reason for the Death penalty is to prevent the murderer from killing another. Ie, we are protecting the innocent victims. To me, tho, we must be VERY sure before the Death Penalty. Second time Killers are fair game. Those who are clearly guilty, and do not deny their guilt, but want to give an excuse (satan made me do it), AND who commit heinous mass murder, are also fair game. Repeat child molestors should be shot immediatly.

I believe Muamar (or whatever) is guilty as sin, but as he does not meet the above criteria, the Death Penalty is wrong for him.

Let’s say for the sake of argument that your serial rapist or murderer here is also a brilliant pathologist who is thisclose to a cure for several forms of cancer. He could be incarcerated for life at taxpayer expense and receive a grant to continue his work. Is it worth it then?