Ernest van den Haag is a prominent retentionist. In this piece, he attempts to rebut many arguments made by abolitionists.
These claims concern questions about: racial inequalities in DP sentencing; the problem of irreversibility; deterrence; cost; symbolism; human dignity.
As becomes clear, vdH is essentially a retributivist. When the chips are down, his position is that DP is a just form of retribution for the most serious crimes. For him, other considerations just don’t matter.
Inequalities in Sentencing
As vdH observes, DP is a rare sentence for the crime of murder. In an average year, there are about 20,000 homicides, but on average over the last 20 years fewer than 300 people are given DP.
There is substantial evidence that race plays a significant role in those small number of cases where there is a possible sentence of death.
This is true not only in verdicts, but especially in decisions about which defendants to seek DP against.
Black people who kill white people are the likeliest to be considered to be “DP eligible” and are the likeliest to receive DP.
VdH doesn’t dispute these statistics, rather he argues that they don’t matter.
He argues instead that the question of the justness in distribution of something is independent of its value (moral or otherwise).
That is, if DP is morally justified, it doesn’t matter if it is imposed unfairly or unjustly. We should, he thinks try to impose it fairly and justly, but the fact that we don’t doesn’t make it immoral.
Miscarriages of Justice?
VdH makes a similar point in response to concerns about executing innocent persons.
He just doesn’t think that it matters. Many human activities come at the cost of some innocent lives, but society still engages in them because the benefits outweigh this cost.
He thinks DP is one such activity.
A popular retentionist argument is that DP deters possible future murderers more effectively than other forms of punishment.
However, more than 50 years of social scientific research has failed to demonstrate this.
VdH is undeterred by this failure, insisting that despite the lack of evidence he believes that there is a deterrent effect, and even if there isn’t DP is justified on retributivist grounds (though he doesn’t provide an argument for this).
Costs, Symbolism and Degradation
These last issues are much less weighty on vdH’s account than the previous.
He dismisses the cost concern by insisting that concerns of justice always outweigh financial concerns.
He responds to a symbolic argument like Nathanson’s by insisting that the symbolic significance is trivial.
He addresses concerns about the DP and human dignity by invoking Kant and Hegel, and by arguing that the murderer brings the degradation on themselves (retributivism).
Bedau, "The Case Against the Death Penalty"
In this essay, Bedau lays out the ACLU's argument against the DP.
Though we are not given the argument in the reading, I summarize it here:
DP is cruel and unusual.
DP is morally equivalent to murder.
DP denies due process. A dead person can't ask for a new trial if proof of their innocence appears.
Gregg model of jury directions ineffective. Merely covers over prejudice and bias.
DP sends message that taking someone's life can be justified by pragmatic concerns.
DP is political, distracts from the real causes of and solutions for crime.
DP is wasteful.
DP is barbaric.
Concl.: We should get rid of the DP
What We Do Get
In the selection from this essay reprinted in the text, Bedau expands on the basic argument by considering three issues important to a consequentialist treatment of DP: deterrence, fairness in administration, and irreversibility.
In each case, he argues that a consequentialist should favor abolition.
Deterrence, Pt. 1
Deterrence requires prompt and consistent implementation of deterrent. DP cannot be administered in this fashion.
~2% of people convicted of criminal homicide are sentenced to death
Mandatory DP laws (Florida type) are unconstitutional.
Murder is either premeditated or it's not. If it is, the people plan to (and think they will) get away with it, thus deterrence is not an issue. If not, then once again it seems unlikely that deterrence would be an issue. Ditto with ideological murders and murders connected to the drug trade.
Deterrence, Pt. 2
If severe punishment deters crime, long-term imprisonment is sufficient. Even studies that show deterrent effects show no difference between life and DP.
States with DP do not have lower homicide rates than states without.
Potential coarsening effect.
No difference in rates of assault and murder of police officers between states with and without the DP.
No difference in rates of assault and murder of inmates and prison personnel between states with and without the DP.
Thus, Bedau concludes, there is no evidence that DP is a deterrent and much evidence to conclude that it isn’t.
Unfairness, Error and Barbarity
Bedau surveys the findings on racial bias, noting most significantly that examination of the race of the victim of those people sentenced to death reveals substantial bias against killers of whites.
Bedau recounts the stories of nine men falsely convicted and given the death sentence to underscore the fact that we are fallible creatures, bound to make errors. Of course, with the DP, each error is a human tragedy.
Bedau highlights how inconsistent our practice is with those of our allies and cultural partners around the world. The U.S. consistently ranks in the top five in number of executions carried out worldwide with Iran, China, Iraq, Saudi Arabia and Pakistan. Hardly enviable company.
Liebman, et. al., “Error Rates”
In this report from 2000, the authors review all of the capital sentences handed down in the U.S. from 1973-2005 with the aim of evaluating the “overall success rate” of this sentencing.
A “success” would be a sentence that withstood judicial review at both the state and Federal levels.
What they found is that the success rate is remarkably low, and that in fact, a massive number of these sentences are eventually overturned due to serious error by the sentencing courts.
The central findings of the study are listed beginning on p. 383.
Notable among them are:
41% error rate determined by state courts of appeal.
40% error rate determined by Habeas Corpus review done by Federal Courts.
Overall error rate for the entire system during these years was an astounding 68%.
This is not getting better. The rates of reversible error have been fairly constant over the period of the study.
DP is not worth it. Time and time again retentionists have tried to address the problems highlighted by the study without appreciably decreasing the error rate.
This is bad for victim’s families, who have to go through the long agony of a trial and appeal process without the closure of a final and secure sentence.
It’s bad for the system, which spends large amounts of its precious and limited resources in what is frequently a fruitless effort.
It’s bad for the society, whose confidence in the judicial system is constantly being undermined by these repeated failures of justice.
We wouldn’t tolerate anything like this error rate in any other situation, we should not tolerate it here. The authors think we should abolish DP.