Aug 17, 2007

acceptable errors: innocence, guilt, and the death penalty

A little moral calculus for the current LD resolution, which concerns the justice of the death penalty.

1. Assume that, at some point, the state has erred and condemned an innocent to die.

2. Assume that this has occurred in 1% of cases. (Given the work of The Innocence Project, which, using DNA technology, has exonerated 15 death row inmates in 15 years, and given an average of 50 executions per year in the United States since 1976, this assumption has a high degree of plausibility--and may even be too conservative.)

3. Is a 1% error rate acceptable?

4. Regardless, what is the maximum or minimum error rate for the death penalty to be considered just or unjust?

5. Is an extremist anti-death-penalty stance morally defensible? In other words, does the potential execution of even one innocent render the death penalty unjust?


Will said...

If it is me or one of my family members who is innocent and executed, then yes, just one innocent person being executed is enough to cause me to be against the death penalty. And therein lies the problem. An "acceptable" error in the death penalty is only "ok" when it is someone else, usually a member of a minority group, who is deemed "acceptable". Bottom line: when you are talking about human life, no error rate is ever acceptable.

Dr. Richard Scott Nokes said...

Voltaire put the calculus at 2-1, Sir William Blackstone at 10-1, and Ben Franklin at 100-1.

Your question seems to be, then, whether the ratio should be infinity-1. A previous commenter suggested that "when you are talking about human life, no error rate is ever acceptable."

If we were to follow this formulation, we would not be able to give prison sentences of any length whereby an innocent man might die in prison. We would not be able to approve the manufacture of products that might, through error or design, kill someone; indeed, the moral mandate would be that we should outlaw any product that might kill a person or hasten his death.

The infinity-1 ratio, then, is a utopian ideal which, if applied, would create a dystopian world.

Laura said...

Nokes compares a death sentence with a prison sentence? C'mon, get real. A person who is serving a prison sentence and who is innocent can be exonerated and freed. A person who is executed can be exonerated but remains dead. There is a qualitative difference between a sentence of death and a sentence of imprisonment. Death is irrevocable. A prison sentence is not. It is not a utopian ideal to prevent the killing of innocent people by the State. It is common sense, and it is moral. When Nokes or one of his family members is the innocent one the State comes for, I suspect that might be a bit "dystopian", eh? But, of course, we know that it is usually the poor and the minorities who suffer the inequities of the death penalty.

Jim Anderson said...

I'd also like to point out that the comparison between state-mandated execution and death from, say, a malfunctioning space heater is a bit of a stretch. Though one may be morally and legally culpable for accidents, they're not in the same moral league as intentional acts.

Dr. Richard Scott Nokes said...

The time of the person wrongly imprisoned is just as irretrievable as the life of the person wrongly executed. Indeed, Voltaire, Blackstone, and Franklin were dealing more generally with the notion of punishment than with the specific punishment of death (though as each lived in societies with the death penalty, it is implicitly included in their moral calculus). If I wrongfully take 10 years of a man's life in prison, I cannot return those years. He has still been terribly punished. Returning his "freedom" is, at the very rosiest interpretation, merely punishing him LESS for his false conviction, not revoking the punishment altogether.

What Laura is referring to, then, is not the revocation of the punishment, but its mitigation. It is true that the death penalty is beyond mitigation, which is why the process is so lengthy. In fact, the Innocence Project that Jim mentioned in the original post is about a 1% rate of EXONERATION, not of wrongful execution. I would argue, though, that these men were still wrongfully punished by imprisonment. In other words, these men were still terribly punished. Look at the banner across the top of the Innocence Project's website -- it is an accounting of men who spent decades in prison for crimes they did not commit.

Juries must do everything they can to avoid condemning the innocent, but they cannot shy away from punishing the guilty. We always MUST assume an error rate (which is why we have an appeals process). I think Voltaire's 2-1 is far too draconian, but 100-1 is acceptable to me. An infinity-1 rate means that the guilty would not be punished, leaving the innocent at the mercy of the guilty.

Nor can I agree, Jim, with the way in which you've used the term "intentional acts" here. My understanding of the original question had to do with people UNintentionally wrongfully convicted and executed. Unless I misunderstood the original question, the assumption was that it is morally acceptable for the State to put guilty party to death. The question seemed to be whether, knowing that there would likely be errors, no matter how small the percentage, it is still just for the State to punish the (presumed) guilty. To use your example, when I manufacture a space heater, I do so knowing full well that there will be errors and someone will die -- the moral calculus I have to perform is much the same.

Finally, Laura, please avoid the ad hominem references to my family and me. They really have no place in rational discourse, and in this case have led you to err in your assumptions about who I am and who is in my family.

Jim Anderson said...

Dr. Nokes, I see what you're saying about intentionality--and yet I still think it's a different category than pure accident. Consider...

1. A soldier shoots at a terrorist, but kills the hostage because his aim is bad.

2. A soldier shoots at a terrorist, but kills the hostage because the gun misfires.

3. A soldier kills a person he thinks is a terrorist because of faulty information.

4. A soldier kills a person he is convinced is a terrorist despite powerful evidence to the contrary.

5. A soldier kills a person he knows isn't a terrorist, and conceals evidence to the contrary.

I think we could morally distinguish all five cases, but haven't worked out exactly how. (#s 4 and 5 have both been uncovered in various cases by the Innocence Project.)

Laura said...

Dr. Nokes: You are simply unable to answer the question. If a 100-1 error rate in the death penalty is acceptable to you, then it would be ok under your logic and analysis if you were the unlucky 1, i.e., the State comes and wrongfully convicts and executes you, right?

Dr. Richard Scott Nokes said...

I'll give one more go at clarifying this.

Of course I would not be "OK" with being convicted in error, of any crime. It is, instead, a matter of morally acceptable risk. If I get into a car and am killed by another driver's error (or my own, for that matter), I'm not OK with the accident, but I *am* OK with the risk I'm assuming. Every time I get into a car, I understand that I am accepting a certain level of risk that I will get into an accident. In the same way, I think it is acceptable for me to assume a 1% risk of punishment in error for a crime in exchange for the punishment of 100 other guilty parties.

Let's take the position of the juror, though, and out of the realm of risk I assume for myself. Jurors have to assume that risk for other people -- the accused. Let's say that every single weekday I drive my children to school. They have little or no choice as to whether to ride in the car. My daughter sits in the front passenger seat (my choice for her), statistically the most fatal seat in terms of car accidents. She could walk to school instead, but since her school is on the way to her brother's, I save her a little time by dropping her off.

I compel my daughter to be at risk of death every weekday, but I have determined that the risk (which is completely optional, since she could walk) is minimal enough that I could accept it in exchange for her convenience of being dropped off. If "when you are talking about human life, no error rate is ever acceptable," I commit a terrible sin against my daughter every day by dropping her off at school.

What I find most problematic about the assumption that non-death punishments are in some way revocable is that it seems to assume that man is immortal. As Socrates teaches us, man is mortal (I happen to agree with that teaching), so we know that a person wrongfully imprisoned irrevocably loses freedom for a certain amount of time in a zero-sum lifespan. Indeed, most sentenced to the death penalty will not be put to death, but will die naturally during the appeals process ... am I to say that because they were NOT put to death the State has no culpability where someone has been falsely convicted? Though I sense you would disagree with me on this point, I think we should treat imprisonment with the same sort of moral seriousness as execution.

In other words, I would not be "OK" with being wrongfully convicted (of anything from a parking ticket to a capital crime), but I am OK with assuming a 1% risk of false punishment in exchange for the proper punishment of 100 other criminals.

Jim, I think you are right to distinguish among these various situations. I took the original question to be about situations 3&4 (where juries are in honest error either reasonably or unreasonably). Still, the soldier is taking a risk that he knows could result in the death of an innocent, so he has to assess the morality of that risk. Throwing up his hands and leaving the hostage at the mercy of the terrorist isn't a principled rejection of the moral calculus -- it's the abdication of his responsibilities as a moral agent.

Phillip K. said...

I'd Just like to not that the resolution assumes a just society, so a 1% error rate, or any error rate for that matter, is non topical, for it could feasibly not happen. although I haven't figured a situation where conviction is 100% accurate, isn't this accounted for in the hypothetical situations of all LD topics?

Jim Anderson said...


That's an interesting way to sidestep the problem. Whether the resolution refers to an utterly utopian ideal is itself a matter of debate; after all, there are competing visions of a "just society." Marxists, for example, would say that any inequality of outcome is unjust; capitalists would say that any attempt to redistribute wealth (and overcome inequality of outcome) is unjust. Either utopia is the other's hell.

Seth said...

Reading these posts it is amazing how some people are so willing to let others be wrongfully convicted and executed for the "good of society". This sounds exactly like something Hitler would have said. I know one thing. I would not want that fellow Nokes on my jury. Scary what academia can do to a person.