The Finality of the Death Penalty


Balko links to this article by an attorney named Pascal-Emmanuel Gobry about the death penalty. He calls the Troy Davis execution “an unconscionable miscarriage of justice,” yet he still comes out in favor of the death penalty. He examines many of the arguments for and against it, admitting that it has no deterrent value for instance, and says that he is “ultimately and reluctantly” in favor of the death penalty because “most of the arguments against the death penalty are bunk.”

I would suggest that arguments like this could cause one to doubt his reasoning ability in this regard:

All that being said, I haven’t broached a final argument against the death penalty, which is the risk of a miscarriage of justice. The death penalty is irreversible, and in the case of a miscarriage of justice there can be no reparation to the condemned.

And my answer to that is… That there’s no good answer. It is surely better to let a hundred guilty men go free than let one hang, and the mind reels at the thought of an innocent man hanging, as they surely have throughout history. That’s the reason why John Paul II personally opposed the death penalty. It’s also the reason why my parents and my wife do.

There are rejoinders: someone who is wrongly executed cannot ever be compensated, but can someone who was wrongly imprisoned for 10 years ever truly be compensated in any meaningful way? Punishment of the innocent is terrible to contemplate whatever the punishment, and yet society must punish and will always be imperfect.

Well yes, that is indeed a rejoinder, but it is a very badly reasoned one. Balko’s response is spot on:

Everyone who makes this argument should spend 20 minutes with a few people who were convicted of a capital crime, then exonerated and released after a decade or more in prison. I obviously can’t speak for every exoneree, but I’ve spoken to many. And I’d wager a good deal of my next paycheck that every one of them will tell you that (a) they’re pretty darned happy they weren’t executed, and (b) there’s a huge difference between incarcerating an innocent person and executing one.

Like Balko, I’ve interviewed people who have been exonerated after being wrongfully convicted and spending years, even decades, in prison. I would love to see Mr. Gobry try to make this argument to one of them with a straight face. No, there is no way of adequately making up for those lost years or for the horrors of being imprisoned for so long. But being let out, finally, and allowed to live the rest of your life with loved ones is still a hell of a lot better than being killed by the state. Indeed, those years after release are probably a lot more meaningful and joyous to them than most of our lives are to us because they have been deprived of those things unjustly for so long.

Comments

  1. jamessweet says

    Not having good arguments against policy X is not sufficient reason to enact policy X, last time I checked… you also need to have good arguments in favor of it!

  2. says

    All that being said, I haven’t broached a final argument against the death penalty, which is the risk of a miscarriage of justice. The death penalty is irreversible, and in the case of a miscarriage of justice there can be no reparation to the condemned.

    He’s a fool. All miscarriages of justice are irreversable. That’s why the standard is “without a reasonable doubt” – if a person is wrongly convicted, as a victim of the state they can never get back the lost days of their lives, the emotional stress, and the inevitable damage to their sense of justice or their trust in the state.

    What he’s really searching for is an “eye for an eye” model. So here’s a simple proposal: if a man be wrongfully imprisoned and exonerated, let those who convicted him and sat in judgement upon him serve the same time. If a man be wrongfully executed, let those who convicted him and sat in judgement upon him be executed as well. Suddenly I suspect the political right’s love of capital punishment would evaporate in cries of “unfair!”

  3. says

    …and says that he is “ultimately and reluctantly” in favor of the death penalty because “most of the arguments against the death penalty are bunk.”

    I would have thought that death penalty advocates are the ones who have the burden of proof to show that the death penalty has some sort of useful function. In that regard, the fact that the death penalty has no deterrent effect and is more expensive than life imprisonment makes it rather hard to support. Unless you just get off on having people killed.

  4. davidcbrayton says

    There should be a name for this kind of reasoning. He starts with a proposition which is actually his conclusion, considers the arguments for and against, and then concludes that his proposition was valid regardless of the arguments proffered.

    Wait, there is a name for it! Faith.

  5. says

    One of the problems with the current system, I think, is that a person’s life can be decided by the opinions of less than two dozen people. That’s a very small sample size to be confident enough of someone’s guilt so as to kill them over it. This at a time when we have strong evidence for the fallibility of people.

    Perhaps it is time that we stop relying on a dozen juror’s. In this ‘Information Age’, is it not strange that we have barely updated the justice system? At the very least juror’s should be able to show they are capable of analysing complex evidence to understand where there is reasonable doubt over a given conclusion.

    Too many people are convicted, I suspect, based on the emotional response of the juror’s to the crime, rather than the evidence which supports the guilt of the defendant.

  6. DaveL says

    He supports the death penalty because most of the arguments against it are bunk? Damn, I sure hope nobody goes around inventing spurious arguments as to why I shouldn’t be murdered.

  7. says

    I’m not sure how “let’s leave X alone because Y is a problem too and I can’t think of a solution for either one of them” is a particularly compelling position to take.

  8. naturalcynic says

    Too many people are convicted, I suspect, based on the emotional response of the juror’s to the crime, rather than the evidence which supports the guilt of the defendant.

    You have hit upon the major emphasis of jury selection. The ability to analyze data seems to be the most important factor in eliminating prospective jurors in voir dire. The prosecution wants to get someone who has an emotional response to the crime while the defense tries to get jurors who appear to have some empathy for the defendant.

  9. tacitus says

    Ugh. Gobry’s article is awful, and his main justification for the supporting the death penalty is completely specious:

    I just want to stress how horrible prison is. Except perhaps in Scandinavia, I’m not aware of any “good” prison, anywhere. They are everywhere a form of torture. Everywhere, violence and rape are rife. Everywhere, they are a laboratory and a school of crime. They are not only torture, not only institutionalized torture, but grotesquely and intrinsically so. And everywhere, the way politics work ensures that they will remain this way, because there will never be strong coalitions in favor of making prison “livable”, if that were possible. And even if it is, on principle alone, it remains an institution that is profoundly shocking to any notion of freedom. There is an argument for short and “medium” prison terms as punishment and rehabilitation, but I don’t believe there is one, in a democratic society, for very long ones.

    “We will torture you with no reprieve for 20 years, but we won’t kill you, that would be too cruel.” Give me a break.

    So that’s my case against prison, and for the death penalty.

    First he admits that Scandinavian countries do have good prisons (and they work, too), and then he throws up his hands and claims that “everywhere, the way politics work ensures that they will remain [a form of torture]”, despite the fact that he just admitted that it isn’t “everywhere.”

    Sure, it’s going to be incredibly hard to reform the prison system along the lines of the Scandinavian model, but giving up and promoting the death penalty as an alternative solution to long term prison sentences is just perverse. Far from making things better, it will likely make things worse, making it far harder to enact meaningful reforms, and dragging many times more classes of criminals into death row making it far more likely that they will use extreme measures while attempting to escape justice.

    Ugh!

  10. D. C. Sessions says

    My favorite bogus argument supporting the death sentence is that in the entire history of executions in the United States, not one has ever been overturned by a court.

  11. says

    I’m quite certain that if most death penalty advocates ever came to sincerely believe that executions are more humane than life in prison, they would soon cease to be death penalty advocates.

  12. cainch says

    Paraphrase: “I’m for the death penalty, but I think the arguments both for and against it are bunk. I was against the Iraq invasion, but I thought the arguments against it were bunk.”

    Equivocate much? This man may be the most abject intellectual coward I’ve ever encountered. Grow a pair and take a damned stand.

  13. sc_2d36966b15bcc3dd5f63e9f616ea7eaa says

    I used to post as Ace of Sevens on the old site. This log-in system only lets me use names I have on Facebook or e-mail, limiting me. Anyway, when I saw the claim that most arguments against the death penalty are bunk, I figured we were in for some weak man argument and maybe some straw man arguments. Sure enough, he goes through a bunch of arguments that are easy to knock down, seems to have no understanding of what vengeance is and skips over arguments like “the death penalty is racially biased.” (It’s also biased against people who allegedly look like criminals, which isn’t necessarily racial.)

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