Death Penalty Analysis: Summary

We've looked at four main arguments for the death penalty. Given the wrongful conviction rate is, and will remain, non-zero, argument from justice will always fail. Given the low rate of escape, especially escape with further murders committed, argument from public safety fails. Argument from deterrence is functionally impossible to prove either way. Argument from cost works in theory, but doesn't in practice, because of how our system is set up to minimize wrongful executions.

Should we remove those safeguards? Execute more innocent people to save money?

I imagine most of you will say 'no'. I'll propose one last thought experiment instead: suppose we make all trials for either death penalty or life in prison have the same procedural safeguards. I would argue that that is a good idea; after all, sentencing someone to life in prison is no less taking their life than sentencing someone to die is. Shouldn't they be equally protected? And now the death penalty may actually be cheaper, like in the naive estimate.

But we just made the whole justice system cost-prohibitive; there are a lot more life-in-prison trials than there are death penalty trials. Can society afford to spent tens of billions of dollars on those increased costs? Once again we're putting a price on justice for the innocent. No matter which way you frame it, no matter whether you're talking about death or life, we're always forced to ask the question: what is the dollar value of saving an innocent life?

Death Penalty Analysis: Adding Reality Back In

So from previous posts, argument from cost is the only possibly convincing argument to retain the death penalty. But there were simplifying assumptions I made; we left out a lot of the procedural differences between capital and non-capital cases.

Right now, death penalty cases are subject to additional expensive regulations that other cases aren't. There are two separate trials, lots of judicial oversight, and many additional prosecutor and defense resources are consumed. The appeals process is more complex, and most states provide appeals lawyers that are not constitutionally required to be provided in other appeals cases. All of that is paid for by the state. In theory, all of this is done to reduce the wrongful execution rate.

Let's assume it does. How does that change the arguments?

• Argument from deterrence remains impossible to prove either way.
• Argument from justice still falls against the death penalty, unless the government provided lawyers reduce the false execution rate to zero. Anyone willing to make that claim? I'm not.
• Argument from public safety doesn't have quite as high a standard, as the wrongful execution rate doesn't have to quite get to zero. But given the extremely low escape-and-murder-again rates, it has to get very close to zero. Based on observational evidence, that doesn't seem to happen
• Cost of the death penalty has now gone up substantially compared to life in prison. Executing someone now costs more than simply leaving them in prison forever. The death penalty just lost its only compelling argument.

In theory, the death penalty might make financial sense, if no other kind. In practice, as presently implemented, it doesn't even get that. With the present system, all four arguments work against the death penalty.

Death Penalty Analysis: Argument From Deterrence

It is argued that the death penalty acts as a deterrent in ways that other penalties don't, and thereby lowers the crime rate and improves public safety. I'll admit, that doesn't work for my psychology. Whether I lose my life after fifteen years in prison or after fifty, I've still lost my life. But that's just me. I'm not a representative sample.

We'll try to analyze this argument from a statistical perspective, as well. Going back to our public safety argument, we can figure that something like 120 innocent people are on death row right now. Since they'll be there for about fifteen years, that's about 8 innocents per year killed if we keep the death penalty. Will the deterrence effect of the death penalty existing prevent more murders than that?

The homicide rate in the US is about 14,000 per year. I can't find a number for how many of those are premeditated (and thus subject to deterrent effects), but we can come up with a reasonable number. There are about 100 new death sentences per year, and not all premeditated murders result in a death sentence due to differing laws and circumstances and plea bargains. So let's say 1,000 murders a year are premeditated. In that case, if the death penalty deters even 1% of potential premeditated murders, it makes up for the lost innocent lives.

That's an effect so small that almost no experiment I can imagine could convince me it existed. Smarter people than me have tried, and the results are similarly unconvincing. Given that, I think that's where deterrence has to land: it might work, it might not, and there's no way to tell. This argument is null in either direction.

Death Penalty Analysis: Argument From Cost of Alternatives

Presently, executing a person costs the state more than life imprisonment, largely due to the different laws and regulations around both. This is where reality doesn't match up with my theoretical arguments. We'll start with the theoretical arguments, though, and then see what changes when we add reality. Remember, this is an argument from cost alone, with no moral dimensions in play.

I've found a few numbers for cost-per-inmate-year. Let's pick a low one: $20,000 per year. An executed inmate consumed fifteen prisoner-years of resources, on average. A life-sentence inmate consumes on average 45 prisoner-years of resources, or three times that. That doesn't account for the increased the medical costs of housing an older person, but we'll ignore that for now. This time we're being generous to the anti-death-penalty argument.

So an executed inmate consumes $300,000, and a life inmate consumes $900,000. That's $600,000 saved per execution, all other things being equal. Even using very low costs for inmate housing, and ignoring the medical costs of older prisoners, this argument looks valid on the face of it.

But go back to the false conviction rate; one out of twenty-five inmates is innocent. By executing 25 people rather than sentencing them to life, you've saved $15 million, but at the cost of one innocent life!

Are you willing to spend $15 million to save an innocent life? Remember, that number is the anti-death-penalty extreme. Go the other way: drop the wrongful execution rate to 0.1% and use higher numbers for prisoner incarceration costs. Would you sacrifice one innocent to save $2 billion?

This is a serious question. Don't believe me? Shocked that anyone could ever put a dollar value on something like not killing an innocent person? Take it even further: what if the cost to save an innocent life was fifty trillion dollars? Would you destroy the economy of the whole world for one person? Of course not; far more people than one will die if you do that. At some point the cost of life imprisonment vs. execution overwhelms the state. That's why execution was ever an option in the first place; an impoverished society can not afford the resources to keep an unproductive member of society alive forever.

So what is the dollar value of an innocent human life? US GDP per capita over 45 years is only $2.5 million. More sophisticated statistical estimates come to around $9 million. Those numbers are instructive, but not comprehensive for such a bizarre question.

Or let's put it another way: say we spend $2b saving an innocent life. How many other innocent lives could we have saved spending that money in some other way? How many medical procedures does that pay for? How much food for the hungry? How much clean water? How much is society as a whole giving up to save that one innocent?

And it's not even that simple. Suppose you saved that $2b by executing an innocent, rather than leaving 999 guilty horrid murderers alive and in prison. We're not talking about spending that $2b to give that innocent his life back. We're talking about spending two billion dollars and still leaving an innocent person in jail forever. Is that enough of an improvement to be worth the cost? If given the choice between dying in jail as an old man, or dying now and knowing that $2 billion would be given to the poor, which would you pick?

Not that our government would actually give that money to useful causes; we'd probably invade Iraq again, or something. (They say you should play to your strengths...) But that doesn't answer anything one way or another. And I'm not saying I have the answers. I'm saying there is no easy answer. This is the terrible calculus of government, wherein lives are weighed against money.

All I can say is that the naive argument that the death penalty saves money works. We'll have to see what happens when reality comes back into play.

Death Penalty Analysis: Argument From Public Safety

It can be argued that public safety is served by killing such criminals. A dead person has literally zero chance of harming anyone. An imprisoned person can, in theory, escape and do more harm.

This is less clear-cut than the "justice" argument. People do escape prison, and sometimes they kill innocents while out. So if you execute terrible criminals you may kill innocents by mistake; but if you fail to execute them innocents may die anyway. Now we have an lives-to-lives comparison, if we can just dig up the statistics.

Per this (informal) source, less than 1% of prisoners escape, and most of those are people who walk away from minimum security work gangs, not murderers. Those numbers seem believable. We'll take that 1% number for now, being generous to the pro-execution argument.

Now, people sentenced to execution may still escape and kill people before they die. Time spent on death row varies, but the average is something like fifteen years, plenty of time to escape. The average age of prison admission in Florida is about 30, and while Florida is freakish in many ways, that's consistent with other numbers I'm seeing elsewhere. Let's also assume that a prisoner's average lifespan is about seventy-five years. So someone sentenced to die has about fifteen years to escape and kill again. Someone sentenced to life has about forty-five, or roughly three times that long.

(We'll simplify and assume that escapees are equally distributed by age, meaning a 74-year-old is as likely to escape as a 35-year-old. We'll also assume that an escaped 74-year-old who's spent his entire life in jail and a 35-year-old recent convict are equally dangerous to the general public. Again, we're being generous to the pro-execution argument. Stranger things have happened.)

According to the Bureau of Justice Statistics, there are roughly 170,000 murderers in prison. Per Wikipedia, roughly 3,000 are sentenced to die, and about 160,000 are sentenced to life, so that's consistent with the BJS data.

Now let's pretend we didn't have the death penalty. In that scenario, those 3,000 are sentenced to life instead. We're supposing that 1% of those, or 30, will escape, which again is generous in the extreme. We'll also suppose that a third of those escapes take place in the first 15 years of imprisonment, meaning they would have happened even with the death penalty. So now we have roughly 20 additional escaped murderers who would not have escaped if we'd executed them on schedule. And let's just assume they all kill one person before being recaptured (again, generous, as most escapees are captured very rapidly). So the death penalty saves twenty innocent lives, by this argument.

Now let's go back to our 4% false conviction rate. That means that of that 3,000 sentenced to die, roughly 120 are innocent. Let me say that again, just to get the full horror across: our government is going to kill 120 innocent Americans, no more guilty than you or me. That could be you, your neighbor, your family. This is not abstract, these are actual people that are going to die for no reason, no different than the innocents killed by those escaped prisoners.

Keep the death penalty and 120 innocent people die. Even assuming the wrongful execution rate is 1% instead of 4%, that's still 30 innocent deaths.

Eliminate the death penalty and 20 innocent people die, being extremely generous. For more realistic estimates of escape rates and the number of murders committed by escaped prisoners, a better number is more like two.

I don't see any way to massage these numbers to give a different result. Even being orders of magnitude more generous to the death penalty argument than is reasonable, the math doesn't work out. As long as our wrongful execution rate is higher than 1% and our escape-and-murder rate is less than 1%, the death penalty kills more innocent people than it saves. And the real numbers are a hundred times worse than that.

When evaluated with real-world data, the public safety argument works against the death penalty.

Death Penalty Analysis: Argument From Justice, Retribution, or Punishment

It is argued that some people simply deserve to die; that, given what they've done, their continuing to live is inherently unjust, regardless of other considerations. This is related to the argument that the victims' survivors deserve retribution. Let's assume that this is so, and that our goal is to minimize the injustice in the universe. Sentencing such people to life in prison creates injustice, and is therefore bad.

The counter-point to this is that executing an innocent person is also unjust. All it does is create a new victim, and do nothing for the survivors of the original. So the injustice created by an avoided-but-deserved execution is one value. The injustice created by executing an innocent is another value. Now since we are trying to minimize injustice, we must ask: how many avoided executions does it take before that injustice exceeds the injustice of executing one innocent?

And remember, we're not talking about killing criminals to save money, or for public safety. We're talking about killing them as an end unto itself. Would you, personally, be willing to kill one innocent person if it meant you also got to kill ten jailed Hitlers? A hundred? A thousand? From a perspective of justice, how many deserved executions is an innocent life worth?

My answer is infinity. I don't care how many horrible criminals I have to leave living in a hole forever; executing one innocent person is worse. By the argument of justice, as long as there is any chance that you might ever execute an innocent person, that potential injustice outweighs all the possible injustice of leaving actual criminals alive.

Tolkien asked, "Some that die deserve life; can you give it to them?" Obviously the answer is no. What we can do is not add to their number. That, at least, is just.

Let me know when the odds of a wrongful execution reach zero. Otherwise, argument from justice works against the death penalty.

Death Penalty Analysis: Introduction

I recently listened to the Intelligence Squared debate on the death penalty. I didn't have a definite opinion on capital punishment before that, but it helped me organize my thoughts. I'm writing this series to help me organize my thoughts further. As per usual, this is not a formal analysis. All my numbers are rough. I'm just seeing if any of these arguments have any chance at all of being valid.

For the purposes of this discussion, I am considering only people who have been convicted of literally the worst imaginable crime; I'd name one, but someone will come up with a worse one, so just use the worst crime you can imagine. If anyone deserves to be executed, it's these people.

I'm also considering that the alternative sentence for these crimes is life in prison, and I'm assuming that it is better for an innocent person to spend life in prison than to be executed. Admittedly that last bit is arguable, but it's the assumption I'm making.

The critical question, the one that determines this entire debate, is this: what are the odds of an innocent person being convicted?

One study puts that number at 4%. Out of 25 people convicted, one will be innocent. That number is shockingly high. Even if you dispute the actual number (and reasonable people can disagree, especially on capital cases), I don't think anyone would dispute that innocent people are convicted of crimes they didn't commit. If you do so dispute, please consider this list of confirmed wrongful convictions, and this one of wrongful executions. And I'd suggest watching this episode of Brain Games (presently available on Netflix streaming). Any conviction based primarily on eye-witness testimony is inherently suspect.

I've heard four arguments for capital punishment, which I will address independently. All of these are based on a somewhat fictional premise: that sentence is the only variable, and that once sentenced, a prisoner will be executed. In reality, that's not true, but we'll talk about the effects of that difference later. I'm trying to analyze the simple theoretical case before getting to the more complex real one. When we add the complexities back in, we'll see if my arguments change.