In this paper, I will examine the debate over legalizing the death penalty, specifically by referring to the writings of Turrow in To Kill Or Not To Kill and Van den Haag in “On Deterrence and the Death Penalty”. I will argue that in responding to Van den Haag’s positions for the death penalty, Turrow would more strongly object to the argument that rests on its justice on opposed to its value as deterrent. I will then consider the merit of the arguments on both sides with regards to justice, eventually concluding that Turrow’s points are most convincing.
Although Turrow makes space in his article to refute arguments based on both deterrence and justice, his argument against deterrence is much shorter and open to criticism. It boils down to the fact that he has not encountered sufficient evidence that the presence of the death penalty results in lower instances of crime. Van den Haag gives several arguments as to why this fails to make a convincing argument against the practice. The ones that are given the most time are the theoretical reasoning that a higher penalty for an action increases deterrence and why the lack of evidence for deterrence should not cause us to assume it does not exist. Since Turrow does not concern himself with the theoretical grounds for deterrence, this argument is unlikely to convince him. If the facts do not back up this theorizing then there is little reason to base policy on it.
Luckily, Van den Haag also responds to concerns about the lack of evidence showing that the presence of the death penalty has any deterrent effect on crime. While he admits that no evidence can be found that the death penalty reduces crime, we should not conclude that this effect is not present. Because there are so many factors that influence things like homicide rates, it is impossible to derive a causal relationship or lack thereof between magnitude of punishment and frequency of offense. As Van den Haag puts it, it is wrong to believe, “lack of evidence for deterrence is evidence for the lack of deterrence”, (Van den Haag, 145). This is accompanied by the claim on Van den Haag’s part that often criminals are not even aware of laws in their state regarding capital punishment, so its presence would not factor into their cost-benefit analysis. Now, an immediate question raised by this is: How can the death penalty deter criminals if they aren’t aware of its existence?
Even though only part of Van den Haag’s appeal to deterrence seems to carry any weight to Turrow, the inability to draw any solid conclusion from statistical analysis should be enough to give Turrow pause, if not necessarily convince him. I will now argue that while Turrow may still disagree with the deterrence argument, he will object more strongly to the appeal to justice that Van den Haag gives.
This is not to say that Turrow rejects the idea that justice should be an end we seek in punishing criminals. In his article, he makes several statements that would be nonsensical if this were not the case. Firstly he says, “I’ve always thought death-penalty proponents have a point when they say that it denigrates the profound indignity of murder to punish it in the same fashion as other crimes.” (Turrow, 4) Turrow is not appealing to deterrence or potential for rehabilitation here in his argument for the death penalty. His objection is based on the fact that some crimes are so heinous that we must respond in kind for the sake of the “moral order”. It seems to me that “restoring the moral order”, is as good a definition of justice as any other.
Now that I have concluded that both Van den Haag and Turrow see justice as a legitimate ground on which to base arguments for and against capital punishment, I must show that appealing to justice leads the two authors to different conclusions.
Van den Haag’s appeal to justice is a very much utilitarian argument that is dependent upon his argument from deterrence. He argues that whatever way that we were to define injustice, the correct action should be that which results in the least injustice. This leads him to conclude that if we are concerned with innocent people being mistakenly given the death penalty, we must consider the number of innocents killed this way and compare it to the number of deaths that could have been prevented by deterrence and see if we have a net gain in innocents saved. He then goes on to argue that capital punishment deters enough would-be killers to make its legality just.
Turrow would object more strongly to claims of justice than to deterrence because, as Van den Haag states, the validity of his justice argument is dependent on the validity of his deterrence argument. I have already mentioned that Turrow is skeptical of claims of deterrence. I turns out that even if he were to reverse his stance on deterrence, he would also disagree with Van den Haag’s reasoning for why this would make a system with capital punishment a just one.
The main flaw that Turrow finds with capital punishment is its inability to be properly implemented within our justice system. He relates stories of his firsthand experience with cases in which men are given, or very nearly given, the death sentence for crimes they did not commit. This deeply troubles him, and he is not so willing to accept this tragedy as Van den Haag is by simply requiring that more innocent lives are saved by the act than are wrongfully executed. He simply states that, “Now and then, we will execute someone who is innocentâ€¦” (Turrow, 7) He makes no reference to the number of people saved by this practice, because that number is not significant. Turrow seems to believe that wrongfully executing someone is far worse than the crime of murder enacted by an individual. This may be that the first is a sort of betrayal of the justice system, whereas the latter is simply a failure of it. Therefore, because Turrow would disagree with both the main argument (justice) and that which it relies upon (deterrence), his objection to justice would be the stronger of the two.
I will now evaluate both arguments from each of these in regards to the justice of having a death penalty. Here I will assume that the argument for deterrence is valid and some innocent lives are spared since Van den Haag’s argument for justice is contingent upon this fact. As I have described it, the crux of this debate hinges on whether or not it is acceptable to allow some innocents to be executed in order to save more from would-be murderers who do not commit crimes out of fear of the death penalty. Van den Haag is satisfied as long as the number of innocents killed is less than without the death penalty whereas Turrow is against any system in which the innocent may be wrongfully given a death sentence.
Something potentially overlooked by Van den Haag is that there may be more consequences to capital punishment being accepted than the accidental killing of innocents. The very idea that one’s government may wrongfully convict you for a crime you did not commit could fray the trust that should theoretically exist between a citizen and the government designed to protect him or her. While this argument could certainly be made for any sort of crime, both authors make the distinction in the death penalty’s “irrevocability”. If one has faith that the system may eventually discover its error (by no means certain), then a jail term can be ended and the victim compensated but this is not possible with death. This fear on the part of the citizen could lead to a lack of cooperation or assistance with the police in a case for fear that they will become a suspect.
However, the argument that we should not inflict the death penalty because we may sentence the wrong person to death deserves a bit more analysis. The common point made by both authors is that it may be better to give a life-in-prison sentence because then any mistakes in conviction may be found and reversed. However, if this does not actually happen then this weakness of capital punishment does not actually exist. It would be worthwhile to examine statistics of how many prisoners serving life sentences are found to be innocent and released. This would give us insight as to how many innocent lives would be lost were capital punishment allowed, and be a mark in favor of prohibiting it. In other words, if life-in-prison sentences are never overturned then prisoners given them in lieu of the death penalty have no chance of being released so the increased chance of righting the wrong does not actually exist. Granted, this theoretical wrongfully accused person does gain life-in-prison as opposed to execution, but this seems like small consolation to a man who committed no crime. This is a measurable quantity, one that I suspect will come down in favor of prohibition.
Of course, as with any objection to a utilitarian viewpoint, as the numbers become more and more extreme our convictions seem less concrete. Would we allow the wrongful execution of one man in order to deter the murders of one million? Because this case is quite unlikely, it does not bear much weight in my considerations.
In this paper I have outlined reasons for which Turrow would object most strongly to Van den Haag’s defense of capital punishment on the grounds of justice, namely that wrongfully executing someone is far worse than failing to