Analysing Arguments: Two Articles on the Death Penalty


“Analysing Arguments” is going to be an ongoing series of posts which analyse arguments found in the news and online media. Some good background material for this is Coursera’s enormously popular course Think Again: How to Reason and Argue, and the book Understanding Arguments: An Introduction to Informal Logic. You might also find the primer How to Argue Online useful. Note: the above course is scheduled for its next run on August 26 2013. We highly recommend signing up – it’s a life-changer, even if you’re already familiar with logical fallacies.


In this first installment of the series, I’m going to look at two recent articles against the death penalty. The first is by Member of Parliament Kanimozhi, and the second is by American lawyer Alan Dershowitz. Both arguments are justifications: they attempt to give good reasons for believing certain conclusions. They are also moral arguments – their conclusions are propositions of value, and so their premises are a mix of propositions of fact and of value.

An electric chair. (Image via Wikimedia Commons; public domain.)

An electric chair. (Image via Wikimedia Commons; public domain.)

1. “Why the death penalty must end” – Kanimozhi

The conclusion Kanimozhi is arguing for is clear from the title itself – that the death penalty in India should be abolished. Here is my attempt at reconstructing her argument. I first extracted the relevant portions from the entire piece and listed them out as premises. Then to those, I added suppressed premises (marked SP), based on some standard pro-death penalty arguments.

————————————————————————————————-

1. “Founding fathers” like Babasaheb Ambedkar thought the death penalty should be abolished.

2. Getting clemency is only open to the wealthy and powerful.

3. Innocent people are executed.

4. The process of deciding who should be on death row is arbitrary and biased.

5. There is no credible evidence that the death penalty has any deterrent effect on crime.

6. Capital punishment is merely revenge, and revenge is not a good enough reason to execute criminals.

7. The rest of the world is moving away from using the death penalty.

8. The “righteous anger” of people and victims’ families, and their desire for comfort and closure by punishment of criminals, are not good enough reason to execute the criminals. (SP)

9. These criminals can be prevented from committing future crimes. (SP)

————————————————————————————————-

10. The death penalty should be abolished. (From 1-9.)

————————————————————————————————-

Premise #1 could be an appeal-to-authority fallacy, but I think it’s reasonable – the people who wrote our constitution knew something about justice and their views do carry some weight. In support of premise #3, she gives several examples of innocent people being executed. She backs up premise #4 with views from the Supreme Court and studies from Amnesty International and the People’s Union for Civil Liberties (though she doesn’t link to these studies).

Coming to premise #5 i.e. the issue of deterrence – she backs it up with “a comprehensive study done last year in the United States”, but again, does not provide any link. This weakens the argument I think, because deterrence is one of the key issues in the death penalty debate. For example, if you can show that the death penalty does not have a deterrent effect, you instantly weaken the utilitarian argument in favour of the death penalty (i.e. it’s okay to sacrifice a few innocents if you prevent a larger number of crimes). Premise #7 again points to the fact that others are against the death penalty – for example she points out that the European Union wants it abolished, and she implies that they must have thought it through, and we should follow their lead.

Coming to the suppressed premises. Reading some pro-death penalty arguments online, I found that a common theme is that the death penalty is needed to bring comfort and closure to victims’ families, and to give citizenry a feeling of satisfaction that a heinous crime has not gone unpunished. So an anti-death penalty argument must reject this. Another point the pro- camp makes is that criminals get out of jail and commit more crimes. So the anti- argument needs to take this into account too.

I think the argument above gives a good “pathway” from premises to conclusion, such that if the premises are likely to be true, then the conclusion is likely to be true. The debate about the death penalty can then become a debate about the premises listed above. (Some other premises that could enter the equation come from the deeper philosophical questions about moral responsibility.)

2. “Dzhokhar Tsarnaev should not face the death penalty, even for a capital crime” – Alan Dershowitz

Alan Dershowitz’s piece had me scratching my head because of this particular paragraph:

There are two fundamental reasons why the death penalty should not be imposed in this case. The first is the obverse of the argument that if anyone deserves the death penalty, it is this defendant. That may will be true. But it follows that if this defendant does not deserve the death penalty, then no one does.

In other words, a decision to withhold the death penalty in this case would be a powerful argument against the morality of the death penalty in any case. As a lifelong opponent of capital punishment in all cases, I would argue that not applying it in this case could have a considerable impact on the movement toward abolition.

Initially I thought this is circular reasoning, but now I don’t think it is. Here is the whole argument along with the other reasons he gives:

————————————————————————————————-

1. The death penalty is always wrong.

2. Not executing terrorists like Dzhokhar Tsarnaev would strengthen the message that the death penalty is always wrong.

3. Executing terrorists is seen as martyrdom by other terrorists.

4. Martyrdom is a powerful incentive for terrorists to carry out acts of terrorism. (SP)

5. Executing a terrorist does not have much deterrence effect on other terrorists.

6. Political calculations (US politics) will put pressure on the court to execute.

7. Life and death decisions should not be made based on political calculations.

————————————————————————————————-

8. We should not execute Dzhokhar Tsarnaev. (From 1-7.)

————————————————————————————————-

The reason I’ve put “The death penalty is always wrong” as a premise is that this piece is not self-contained – the writer indicates his reasons for opposing the death penalty in general (“As a lifelong opponent of…”) have been given by him elsewhere. I assume these reasons are similar to the ones Kanimozhi gives above.

Incidentally, the reason I picked these two arguments is that there is a link between them: in India, the death penalty is allowed for the “rarest of the rare” cases i.e. the exceptional cases that Dershowitz argues should still not be permitted.

 

Comments

  1. unbound says

    As an alternate question for premise 5 (of the first arguments), shouldn’t the burden of proof be on those that support the death penalty? The studies are conflicted and do not support the notion either in favor of or against the death penalty being a deterrent. Since killing is the more extreme alternative, logically I would think that argument needs the supporting evidence, not the reverse.

  2. pianoman, Heathen & Torontophile says

    i agree with these arguments. there is something less than civilized about any society that kills its own people for the benefit of some revenge and then calls it justice.

    my biggest issue with the death penalty is that there have been innocent people executed, and that alone is enough to abolish it. but the overzealous prosecutors or DA’s who are needing votes for an election? how disgusting that someone would use a person as “collateral damage” for political aspirations.

  3. CaitieCat says

    Excellent article, and superb reasoning. For me, the possible judicial murder of innocents is the bright line on this issue. I don’t see any possible justification – I find the utilitarian argument particularly appalling in this regard – for the state to be willing to occasionally murder a person who is not guilty. Our systems (here in Canada, we’ve already abolished the death penalty, but the US obviously still has it) have shown, repeatedly and numerously, that they are incapable of infallibly recognizing guilt, demonstrated by the number of people vindicated by more modern evidentiary techniques.

    Combine a system which is at best imperfect in rendering guilt/innocence decisions, with a mechanic which is absolute and irreversible, seems to me morally reprehensible, and since the state would ostensibly be doing it in my name, I feel compelled to object to its use.

    This, of course, is a big part of why I’m a member of Amnesty International, to put my biases out on the table, as it were.

    Excellent post. Continued quality from Nirmukta – thank you Sunil!

  4. cotton says

    I don’t see many objections here that are not subjective, or wouldn’t also apply to imprisonment. I don’t think we should determine penalties based on the idea that those punished are innocent. I do think there is much reform possible to the criminal justice system. I think the problem is in the convictions area, though. The problem with innocents being convicted is not that they are punished as the truly guilty, it is that they were convicted at all. My responses to the first 9 points of argument below:

    1. “Founding fathers” like Babasaheb Ambedkar thought the death penalty should be abolished. Appeal to authority. Sunil’s rebuttal to this is not very good. Fallacies are fallacies are fallacies.

    2. Getting clemency is only open to the wealthy and powerful. Avoiding imprisonment is also largely tilted to the wealthy and powerful. It is the US, anyway.

    3. Innocent people are executed. Innocent people are imprisoned.

    4. The process of deciding who should be on death row is arbitrary and biased. Fair enough, I agree. There are problems with how the death penalty is carried out (executed?) and I would see much improvement and standardization brought to death penalty cases. If we can forge out prison sentences with specificity, we should do the same with our ultimate penalty.

    5. There is no credible evidence that the death penalty has any deterrent effect on crime. Is there credible evidence that imprisonment deters crime? I’ve heard several stories that would tell me different.

    6. Capital punishment is merely revenge, and revenge is not a good enough reason to execute criminals. Why not? Very subjective.

    7. The rest of the world is moving away from using the death penalty. Argumentum ad populum.

    8. The “righteous anger” of people and victims’ families, and their desire for comfort and closure by punishment of criminals, are not good enough reason to execute the criminals. (SP) Why not? Very subjective.

    9. These criminals can be prevented from committing future crimes. (SP) Dead criminals… etc etc.

  5. CaitieCat says

    This may come as a shock, cotton, so you might want to sit down, but here goes: Just because you deride something is subjective? Doesn’t actually make it so. A little evidence – you know, that kooky stuff Sunil was giving, in support of the premises? Goes a long way to making your argument, y’know…worth reading. All you’ve offered has been “Well, I don’t agree with this, so it’s subjective and therefore useless.” This is positioning your own view as necessarily the same as the “objective” view, which is…problematic.

    Also, rejection of subjectivity? A regularly-encountered way to disempower people who don’t happen to have views which are viewed as “objective” by those benefiting most from the power structures in place. If their views match those of the important Default Human, we’re supposed to give more weight to them, and if they don’t, they’re “subjective” and thus dismissable.

    Come on back when you’ve discovered what “evidence” is, and we’ll give your arguments a fair hearing. Until then, you’re just farting in the thread.

  6. Sunil says

    (Err just to be clear, in case it isn’t – those aren’t my arguments. I’ve reconstructed two arguments made by others.) Cotton, why don’t you do the same – i.e. lay out your argument for/against the death penalty in standard form. A suppressed premise in your argument for example seems to be something like “The legal and moral issues involved in imprisonment are the same as those involved in capital punishment”. I find that putting one’s arguments in standard form is great because it clarifies things in one’s own mind – and quite often you’ll discover something that hadn’t occurred to you earlier.

  7. Sunil says

    CaitieCat – thanks, I wasn’t aware that Canada abolished the death penalty (as I just learned not that long ago either – 1976). The article doesn’t say what the key arguments in the vote were… I’m guessing it was similar premises as above?

  8. billyeager says

    Let’s look at it from another angle by way of an example I call ‘Schrödinger’s Execution’.

    We have a person who has been found guilty of heinous criminality and inflicted gross acts of harm on other human beings. In the ‘comments’ section of most media sites, we see calls for ‘ten minutes alone’ with the offender, or agonising torture followed by a slow death, the usual mish-mash of anger and frustration expressing itself by way of explicit statements of punishment/revenge.
    Accompanying such chest-beating rage against the offender is also the usual slew of commentary relating to how said criminal will be treated in the ‘afterlife’. That they will ‘burn in hell’ and all the other creative fiction applicable in these situations.

    We can ignore the argument against capital punishment that relate to whether it acts as a deterrent because, ultimately, it doesn’t actually matter. The ‘three-strikes’ ruling in some US states has shown that an offender facing mandatory life-imprisonment if they are caught for their third crime, may well be led to commit far worse acts in their attempt to avoid capture, or ‘go down fighting’. The same perspective is applicable to those facing a possible death penalty too. Dysfunctional neurology/psychology does not lend itself to considered reasoning when it comes to potential punitive sentencing.

    People do bad things, not because they are ‘Evil’ (with the capital ‘E’), but because they are neurologically/psychologically dysfunctional.

    Imagine said offender is walked along a corridor, flanked by those who call for bloody and violent retribution, before being led into a windowless room, whereupon those outside said room are informed that the vicious acts of torture and suffering they demand are being inflicted. Only they are not allowed to see or hear it because, well, that would just be wrong, right? After a suitable amount of time whereby the attending throng of angry lynch-mob are fed a steady stream of graphic descriptions of the utterly barbaric acts that are being inflicted on the offender, in revenge for the crimes committed, they are told that, following a slow and truly agonising death, the offenders body has now been disposed of by cremation and that the process is over.

    But, this being a ‘Schrödinger’ hypothesis, the offender might have been executed swiftly and painlessly without even being aware it was happening, or he could be still alive and perfectly unharmed in the windowless room, where he will remain until natural death occurs following a number of years of standard incarceration-level care and maintenance.

    Nobody outside the room will know for sure what the true state of the situation is, only that the offender is no longer part of society.

    The ‘baying-for-blood-and-retribution’ crowd may feel ‘satisfied’ in some way at the thought of the perceived suffering the offender was said to have endured before their death. It is likely that the part of the human ‘psyche’ that would experience said ‘satisfaction’ is not one of our most positive features as a species. It is likely that the encouragement of groupthink violence and retribution is indicative of barbarism and is as dysfunctional as the horrific crimes that fuel it. In fact, the mere process of suggesting innumerate examples of pain and suffering are being committed against the offender, is as repugnant and toxic an influence on society as the acts themselves.

    So what should happen when the door is closed behind the offender? When the offender is permanently removed from society, what purpose does any action we take have when it is the removal from society which is singly the most constructive and beneficial stage of the process.

    Where we are not looking to rehabilitate and release, we must view capital punishment, not as retribution or revenge, or even as a deterrent to others, but as a removal from society. That is all it is. Capital punishment is the correct response to those who pose a persistent threat to society simply by way of ensuring that they are no longer part of that society. It is not unhealthy to support capital punishment solely for the purpose of eliminating a dangerous individual so they may no longer pose the threat to others that they do.

    Except, of course, that we get things wrong. A lot. We are capable of the most epic foul-ups and monstrous mistakes possible. Which is why capital punishment is wrong. Removal from society is the goal, our fallibility means the solution can only ever be permanent incarceration, because one innocent person executed is too many. We must shoulder the financial burden of permanently incarcerating the persistently dysfunctional because, with alarming regularity, some of them eventually turn out to have been wrongly convicted.

  9. left0ver1under says

    Here’s one more thought: Why are uninvolved observers so gung-ho about executing the accused when they have no basis for it? When people outside a prison cheers after an execution, they can’t all be victims or related to them.

    Most of those who want executions enjoy watching other people die.

    Wanting executions and wanting to watch them isn’t about deterrent, it’s a sociopathic mob mentality no different than those in countries that beat people to death on the street or watched gladiators murder each other 2000 years ago.

  10. CaitieCat says

    Hi Sunil – as you say, it’s been 37 years since they ended capital punishment in Canada, and unfortunately, it happened about three weeks before we arrived here (my family came here from the UK when I was 9).

    The Font of All Knowledge says it was basically the points I raised above. The Steven Truscott case was particularly important, in the end, and we’ve had a number of very high-profile cases where the person imprisoned for a murder was, in fact, quite innocent of it. I’d be very surprised if Canada ever brought it back. Public opinion tends to run pretty strongly against it, though it’s quite polarized. Those who are for it are VERY for it, and those of us against are pretty strongly convinced too.

    Like the UK, Canada has a tool with which to achieve indefinite detention of those deemed too dangerous to release, the “Dangerous Offender” designation. Basically, on conviction for a third serious violent offence (sexual assault, kidnapping, murder), the Crown can ask for a DO designation, and unless the offender can plausibly say it’s unwarranted, the person is then held without release until such time as they are able to prove they aren’t a threat. In general, this standard is not often met, and such convicts will generally stay in prison for life. It’s not used very often; last time I checked, there were under 100 DOs being held in the country.

  11. cotton says

    To Caitiecat: I don’t dismiss subjectivity as useless, but I don’t see its strength in convincing other people to agree with a position not directly related to the person’s subjective experience. How exactly do I marshal evidence for or against the idea that revenge is not a valid reason for the death penalty?

    To Sunil: I’ll give it a shot, but I’m not great at this.

    Punishments for crimes should not be based on whether or not a person might be innocent. This would lead to chaos in the sentencing process of judgments.

    Being innocently imprisoned for life is, arguably, as bad as being executed innocently.

    Punishments send a message to society. The death penalty sends a very stark message that THESE THINGS HERE are so awful, and that we as a society are so offended by them, we cannot suffer the performer of them to live. Nothing communicates the sense of righteous opprobrium like refusing someone the right to draw one more breath on the Earth he/she shares with those so offended.

    Therefore the death penalty is at least a legitimate method of punishment.

    I would hasten to add that serious reforms are necessary (at least in the US) in the criminal court system. I have as much a problem as anyone with the bias towards African-Americans in the application of the death penalty. I also have it in the application of life imprisonments. My overall view is most likely colored by the fact that, to me, life imprisonment and death are nearly equally unimaginable.

  12. says

    I’ll be honest: I don’t like either argument.

    I don’t think it’s a presupposition that the death penalty is always wrong. But I do think you can reach that conclusion.

    Frankly, I don’t see how you can claim to value human life if you teach people that killing others is wrong by killing them in turn.

    Seems a hypocritical action in and of itself. Fundamentally immoral.

    “Worst of the worst” or not. State-sanctioned executions sends the message that killing someone is indeed a “moral” solution to a problem. The only differences, then, are who is doing the killing and who is sanctioning the killing for what purpose.

    Timothy McVeigh wanted his death to trigger a revolution. He thought his right-wing pals would “avenge” his death by overthrowing the government. And who’s to say that wouldn’t have been the strictly logical moral action from their perspective? We’re only lucky that those folks are pretty much “all hat and no cattle” as they say out west.

  13. cotton says

    Kevin: When you say “the only difference, then, are who is doing the killing and who is sanctioning the killing for what purpose.” I just don’t know what to say. Uh…yes? For some reason I so often see this tendency to take killing, and only killing, and declare that all who engage in it are by definition morally equivalent. Your argument sounds silly (to me) when swapped with imprisonment. E.g. I don’t see how we can claim to value human freedom if you teach people that imprison/ kidnap others are wrong by arresting and imprisoning them in turn.

  14. Corvus illustris says

    @9: Wanting executions and wanting to watch them isn’t about deterrent, it’s a sociopathic mob mentality no different than those in countries that beat people to death on the street or watched gladiators murder each other 2000 years ago.

    FWIW, Michigan (as a state) abolished judicial homicide* back in the 1830s–the first English-speaking jurisdiction to do so–after a grisly hanging-gone-wrong in Detroit during the territorial period. Not everybody likes to watch executions.

    *It remained as a dead letter on the books as punishment for “treason against the state of Michigan” (does this notion exist outside comic opera?) until abolition was written into the Romney constitution of the 1960s. The Roosevelt administration used this as an excuse to hang a man in Milan prison in 1938 over the vehement opposition of then-governor Frank Murphy (the dissenter in Korematsu).

  15. says

    @cotton: Take it from the perspective of someone who is terribly wronged by the powers that be. They’re frustrated and angry at society. Their only recourse (they feel) is violent action. Literally every other avenue has been proven ineffective.

    They kill. They feel morally justified.

    They’re wrong.

    You’re wrong. Killing, not matter what the goal or who the sanctioner, is never the moral decision.

    Sorry, but your justification that “because the government does it, it must be OK” doesn’t fly. Governments can and do engage in immoral behavior. And institutionalize immoral behavior. For example, the state I live in has a constitutional amendment against gay marriage — which is a fundamentally immoral position to take.

    This is not different. You either act in a moral manner, or you don’t. But don’t try to justify immorality on the basis of power (ie, governmental authority). It doesn’t work.

  16. says

    One other thing: Performing an immoral act for a moral reason does not turn that immoral action into a moral one.

    Intent is not magic.

  17. cotton says

    Kevin: Lots of confusion. I never stated, nor would I state, that things are justified because governments do them. I’m saying that killing is sometimes justified. Are you saying that it isn’t? There are NO situation upon where killing someone is justified? If you indeed maintain there isn’t, then the conversation is over. You would be quite radical in your pacifism. That’s fine as it goes, but there wouldn’t be much left to talk about.

  18. gregpp says

    @ #9 It may have to do with our propensity to punish cheaters/defectors. As a social species, cooperation requires an aversion to those who would otherwise reap the benefits without paying the cost. As I understand it the urge to punish cheaters harshly would encourage cooperation within the group. I have come across this argument in several books, [Religion Explained: Boyer] is one.

  19. Bill Openthalt says

    Not all convictions are unsafe, hence one cannot invoke the inherent unsafeness of convictions to oppose capital (or other) punishment. To reduce miscarriages of justice, we simply need to extend the scope of reasonable doubt, but mistakes will continue be made.

    There is evidence for the deterrent effect of the risk of punishment (e.g. effective policing of traffic), even though it never deters all offenders. Deprivation of liberty, on the other hand, turns out to be a rather inefficient punishment, because it reduces the offender’s social environment to people with lowered moral perceptions. As humans tend to “normalise” their primary environment, prisons tend to contribute to social and moral inadaptation. Confronting people with the results of their behaviour, and connecting them with society through a process of restitution tends to be far more effective.

    Kevin, you simply state that in your morality there is no place for killing. Your problem is convincing those who feel differently using objective arguments, and not mere forceful affirmations. For example, would you consider it moral to kill a person who is out to kill you or your family?

  20. says

    For most of my life I have felt that the Death Penalty was a just punishment that the government could administer. My mind has changed over the last few years. I made a video that explains why I changed my mind.

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