Death Penalty: Is it Moral in Some Contexts, Should it be Allowed?

Ethics
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I would consider it to be a correct statement of reality and the Objectivist stance in the context of contemporary legal epistemology.

Thank you. Context is everything.

What would have to change, in your opinion, to make a death penalty moral and viable?

I find “beyond reasonable doubt” rational, in principle - the devil is what people consider “reasonable doubt” of course. As things stand I would think that the current philosophical skepticism would tend to lead to letting guilty people off the hook and not convicting innocents, thus my curiosity about your take on the matter.

That is prior commitment to philosophical skepticism even before examining the particulars of any case.

This is exactly what I was talking about.

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I find “beyond reasonable doubt” rational, in principle - the devil is what people consider “reasonable doubt” of course.

This is a complex issue, from a practical perspective. I believe that the philosophical matter is very simple – you must be certain that the accused did the deed. Empirically, it is well-established that the prevailing US jury instructions on burden of proof fail to communicate what must be communicated. Here is a sample of the problem. In Cage v. Louisiana, 498 U.S. 39 (1990), the trial court instructed that:

[A reasonable doubt] is one that is founded upon a real tangible substantial basis and not upon mere caprice and conjecture.

It must be such doubt as would give rise to a grave uncertainty

, raised in your mind by reasons of the unsatisfactory character of the evidence or lack thereof. A reasonable doubt is not a mere possible doubt.

It is an actual substantial doubt

. It is a doubt that a reasonable man can seriously entertain. What is required is not an absolute or mathematical certainty, but a moral certainty.

This is way wrong (as was determined on appeal) – it requires establishing grave and substantial doubt. It simply misstates the burden of proof, imposing an unconstitutional affirmative burden on the defense.

The must successful approach states the burden of proof (BOP) in terms of the state’s obligation to prove something. That specifically refers to a doubt grounded in a concrete, unanswered fact. Thus arbitrary and imaginary claims to not constitute “doubt”; but if there is weak evidence (real i.e. unrefuted evidence) that constitutes support for a claim of an alibi, then there is a concrete unanswered fact that constitutes “doubt”.

A serious problem with current instructions is that they lead jurors to believe that once the prosecution has advanced some incredibly weak claim, it is the duty of the defense to refute that claim. I think one reason this happens is that jurors are told to make a decision between “guilty” and “not guilty”. The problem is how people are likely to interpret that two-way choice. If the alternative were between “proven guilty” and “not proven guilty”, there would be fewer convictions in questionable cases. As it is, instructions don’t clearly tell jurors that “if you are not completely certain, vote ‘not guilty’”. An example of an empirical finding on this point, about 30% of jurors polled in Wyoming agree that when the state gives some evidence of guilt, the defense must then persuade the jury of his innocence. (This is false, w.r.t. what the BOP instruction is supposed to have jurors thinking).

The Federal Judicial Center instructions address this, more satisfactorily, with the recommended instruction “A reasonable doubt may arise from the evidence itself or from a lack of evidence”. There are various empirical studies that show that this kind of instruction plus a re-statement of what the state must do – leave the juror “firmly convinced” – substantially reduces the percentage of improper convictions.

There are some important linguistic effects pertaining to the expression “beyond a reasonable doubt”, which has become common in jury instructions. The noun “doubt” can refer to the mental state of having a certain propositional attitude, or it can refer to a piece of evidence against a proposition. If you use “reasonable doubt” as a mass noun, it refers to a mental state, and if you use “reasonable doubt” as a count noun, then it refers to pieces of evidence. The current expression “proof beyond a reasonable doubt” treats “doubt” as a count noun, which means that, if you think you have “a reasonable doubt” you must ask “what are they” (the pieces of evidence), which means that the defense must provide doubts.

Now finally, here is why every juror should be forced to read OPAR ch. 5. Recall that the strongest mental state is that you are certain, that the evidence is sufficient to prove the conclusion, and that there is no evidence to suggest otherwise. You could also disbelieve, because there is very strong evidence showing that the proposition is actually false – thus “be certain that it is not the case”. In the middle but towards the certainty end, you could strongly suspect that a proposition is true. Even earlier on the Peikovian evidentiary scale, towards the disbelief end, you may have some evidence indicating that the claim is true but more evidence that it is false, so you doubt the claim.

As you can see, “doubt” is a fairly active state of disbelief. But this is the wrong end of the scale for a juror to be on. It is not the burden of the defense to so totally overcome the arguments of the prosecution that the juror does beyond saying “The prosecution’s claim is only weakly possible, in fact the claim is arbitrary”. By demanding the creation of “doubt”, the defense is put in the position of having to prove the falsity of the prosecution claim.

So the focus should be on requiring the prosecution to provide actual evidence of guilt to the point that the juror is certain that the claim is true.

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A serious problem with current instructions is that they lead jurors to believe that once the prosecution has advanced some incredibly weak claim, it is the duty of the defense to refute that claim. I think one reason this happens is that jurors are told to make a decision between “guilty” and “not guilty”. The problem is how people are likely to interpret that two-way choice. If the alternative were between “proven guilty” and “not proven guilty”, there would be fewer convictions in questionable cases. As it is, instructions don’t clearly tell jurors that “if you are not completely certain, vote ‘not guilty’”. An example of an empirical finding on this point, about 30% of jurors polled in Wyoming agree that when the state gives some evidence of guilt, the defense must then persuade the jury of his innocence. (This is false, w.r.t. what the BOP instruction is supposed to have jurors thinking).

This is why I like the Scottish Verdict, i.e. “not proved.” They have “guilty”, “not proved”, and “not guilty,” where both “not proved” and “not guilty” are acquittals, but “not proved” is when guilt was not proven but there was substantial evidence for it. Some apparently call it “not guilty, but don’t do it again.” Haha. I think having all three options makes the most sense. Legally, you get off scot-free, but there is a stigma attached to it. Much like the situation with OJ Simpson’s trial from the early 90s, he had a massive stigma placed on him; “not proven” is essentially the same sort of thing.

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Before studying Objectivism, my argument against capital punishment went something like this. A man wrongfully imprisoned may be set free, a man wrongfully accused cannot be resurrected. I question how justice is better served by using capital punishment over life imprisonment. I see only an increased risk of committing irrepairable injustice if the man convicted and put to death is innocent. The push for capital punishment seems driven more by an emotional desire for vengence than reason.

What if you are absolutely certain he is guilty? Can you be absolutely certain he is guilty? What is the standard of absolute certainty? Eyewitness accounts? Video footage? DNA evidence?

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Before studying Objectivism, my argument against capital punishment went something like this. A man wrongfully imprisoned may be set free, a man wrongfully accused cannot be resurrected. I question how justice is better served by using capital punishment over life imprisonment. I see only an increased risk of committing irrepairable injustice if the man convicted and put to death is innocent. The push for capital punishment seems driven more by an emotional desire for vengence than reason.

I don’t know what the push for capital punishment is driven by, in general. I’m in favor of it because I consider death to be a greater punishment (and therefor deterrent), than life in prison. I would back up that opinion with a list containing any number of things a person can do, during a life spent in prison, which are of value to him, as well as with the low percentage of people who choose suicide when they experience prison.

Do you have anything to counter my argument, or do you intend to instead just go for an ad hominem, and speculate that I’m emotional and irrational?

What if you are absolutely certain he is guilty? Can you be absolutely certain he is guilty? What is the standard of absolute certainty? Eyewitness accounts? Video footage? DNA evidence?

  1. If you are certain that he’s guilty, then your argument (about the irreversibility of the penalty) doesn’t apply, and you have provided no reason against the death penalty (except for the speculation on people’s feelings, which is not a valid argument).

  2. Yes.

  3. Reason.

On a sidenote, your argument, if that argument is that one cannot be absolutely certain, is an obvious contradiction: You cannot hold the statement “One cannot be absolutely certain.” to be a true statement. After all, it is a statement that expresses your absolute certainty about the non-existence of absolute certainty.

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What if you are absolutely certain he is guilty?

Have you read OPAR ch. 5? If so, re-read it, and notice that Peikoff does not frame the question in terms of subjective emotion, he frames it in terms of a conclusion being (objectively) certain. He answers your questions, in fact you don’t even have to read the whole chapter. Read from p. 171 onwards.

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I don’t know what the push for capital punishment is driven by, in general. I’m in favor of it because I consider death to be a greater punishment (and therefor deterrent), than life in prison. I would back up that opinion with a list containing any number of things a person can do, during a life spent in prison, which are of value to him, as well as with the low percentage of people who choose suicide when they experience prison.

Do you have anything to counter my argument, or do you intend to instead just go for an ad hominem, and speculate that I’m emotional and irrational?

  1. If you are certain that he’s guilty, then your argument (about the irreversibility of the penalty) doesn’t apply, and you have provided no reason against the death penalty (except for the speculation on people’s feelings, which is not a valid argument).

  2. Yes.

  3. Reason.

On a sidenote, your argument, if that argument is that one cannot be absolutely certain, is an obvious contradiction: You cannot hold the statement “One cannot be absolutely certain.” to be a true statement. After all, it is a statement that expresses your absolute certainty about the non-existence of absolute certainty.

The statement “One cannot be absolutely certain” is indeed a meaningless contradiction without putting in the context of “what.” We can be absolutely certain of the nature of gravity or the boiling point of water under given conditions because they are repeatable. Reason allows us to observe natural phenomenon and repeat experiments. Reason does not allow me to look into the past and observe a crime with that same degree of absolute certainty. You can be reasonable certain of past events based on evidence, but is that a sufficent standard for executing a convicted criminal? I don’t doubt that execution is a greater deterrent than imprisonment, but that does not alter the injustice of sacrificing even one innocent wrongly convicted man to get at the guilty.

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Have you read OPAR ch. 5? If so, re-read it, and notice that Peikoff does not frame the question in terms of subjective emotion, he frames it in terms of a conclusion being (objectively) certain. He answers your questions, in fact you don’t even have to read the whole chapter. Read from p. 171 onwards.

What is OPAR? I’m currently reading “For the New Intellectual” and von Mises “Human Action.”

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What is OPAR? I’m currently reading “For the New Intellectual” and von Mises “Human Action.”

Objectivism, the Philosophy of Ayn Rand, by Leonard Peikoff.

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The statement “One cannot be absolutely certain” is indeed a meaningless contradiction without putting in the context of “what.” We can be absolutely certain of the nature of gravity or the boiling point of water under given conditions because they are repeatable. Reason allows us to observe natural phenomenon and repeat experiments. Reason does not allow me to look into the past and observe a crime with that same degree of absolute certainty.

I disagree with you that repetition takes the concept of certainty out of context, and makes it absolute. You can be certain for X when the evidence for it is conclusive. That conclusive evidence can consist of video footage, DNA evidence etc., or even repetition coupled with other evidence (not repetition alone, of course).

Reason does not allow me to look into the past and observe a crime with that same degree of absolute certainty.

My original claim of a contradiction stands. This time, your claim is not that one cannot be certain in general, it’s that given a context of a crime A, one cannot be certain of anything except by repeating an experiment enough times, in that context of the crime A. That’s a conclusion about that context, that you arrived at without repeating the experiment, in that same context.

51

You can be reasonable certain of past events based on evidence, but is that a sufficent standard for executing a convicted criminal?

Certainty is always based on evidence. That is what the concept “certain” is all about.

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Can you define “one chance” in mathematical terms? (one is a number, so you are in fact appealing to math, you should define your terms) Is it a 1% probability? 0.1% probablity? 0.01% probablility? And how do you calculate it?

What I’m getting at is that you’re wrong, there isn’t always a possibility that we’re wrong, there are cases in which we’re right.

…Huh?

That is prior commitment to philosophical skepticism even before examining the particulars of any case.

…Huh?

53

…Huh?

Raising doubts for no reason, arbitrarily, claiming with certainty that certainty is impossible in principle, that is philosophical skepticism. It is wrong.

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Dave, thank you very much for that detailed reply.

I definitely agree with you that the conditions for conviction have to be changed towards finding positive proof as opposed to not “finding” doubt.

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So, here’s a question I have: Why do we NEED the death penalty?

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So, here’s a question I have: Why do we NEED the death penalty?

Because of people who deserve it.

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Because of people who deserve it.

So, it’s a question of reciprocation.

What crimes would warrant the death penalty? I remember Ayn Rand did say that death penalty should be reserved for rare cases. What would those rare cases be?

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What crimes would warrant the death penalty?

For starters, it should only be possible as punishment for murder.

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So, it’s a question of reciprocation.

What crimes would warrant the death penalty? I remember Ayn Rand did say that death penalty should be reserved for rare cases. What would those rare cases be?

Reciprocation would imply raping the rapists, crushing hit and run killers in fiery wrecks etc.It’s not really a question of reciprocation, it’s a question of both deterrent and elimination of a problem. (the problem being the murderer who has no restraint from murdering)

The crimes that warrant it are the murders where there is no doubt about the murderers guilt and depravity. I’m not sure how rare or frequent that is, I don’t work around such people, nor have I studied them, but it clearly exists. (while one murder may or may not be proof enough that one has taken the path of preying on his fellow humans, depending on the circumstances, serial killers, mass murderers have proven that sufficiently)

60

Let’s approach this from the opposite angle and assert that it is possible to know everything with absolute certainty, even events that occured in the past. Yet we still do make errors of knowledge right?

Now in the course of convicting criminals and sentencing them to death, over time it reasonable to assume errors of knowledge still occur, yes? Eyewitnesses can make mistakes, Lab technicians make errors, and occasionally overzealous law enforcement personnel plant evidence because they “feel” an individual is guilty. So in the course of executing convicted men, it’s reasonable to assume you’re going to kill a few innocents along with the guilty, right? Just like in the course of lending money, they’re a few who end up not paying. You try to use credit models to minimize this but it still occurs because you can’t know the course of future events. Is that a sacrifice? Wouldn’t we be sacrificing innocent lives to execute the guilty?

My argument is that we cannot be absolutely certain about past and future events in the same way we can be absolutely certain about the laws of nature or logic. This is due to the problem of errors of knowledge. Hence, no legal system can exist in which knowledge of guilt or innocence would be absolute. But these errors of knowledge are correctable to some degree, provided you don’t use capital punishment.