Some clarifications on my death penalty post (originally posted at Triablogue)

My argument is actually somewhat different from what you are describing. As the death penalty is now practiced in America, we take extra precautions with it, in virtue of its irreversibility. As a result, two advantages of the death penalty over life imprisonment are compromised. First, while most people think the state pays less by using the death penalty than it does in life imprisonment, the fact is that when litigation costs are factored in, execution is more expensive. Second, the deterrent effect is diminished, since not only does the criminal expect to get away with it (otherwise, he wouldn't commit the crime), but also, should someone actually be tried and convicted and sentence to death, death is hardly immanent, because the murderer can expect a long appeals process which is going to delay the execution for many years, assuming the execution occurs at all. This is probably the reason why crime statistics in states without the death penalty are no worse than in states with it. Having the death penalty just means that you might be sentenced to death, and then after 20 years or so, after your appeals run out, you may get executed, unless, of course, they decide not to execute you, which they might very well do.

So, it looks like the only way to make the death penalty do what we hope it will do is to "fast-track" it, eliminate the appeals, and make execution immanent for those convicted of capital crimes.

Of course, the irreversibility of the death penalty is an argument against its very existence. However, where we do practice the death penalty, we seem to concede an important point to its opponents, namely, that there should be a lot more appeals when we execute than when we imprison, because we can release exonerated prisoners, but not people we have executed. The result is that the two benefits of a death penalty seem to be either eliminated or greatly weakened.

So, if we have a death penalty that does what we want it to do, we have to accept the risk of executing innocent people and fast-track the death penalty. We have to not only risk executing innocent people, but we also have to increase that risk by curtailing the appeals process.

To do that, I think we have to abandon the idea that the execution of an innocent person is a more tragic failure of justice than the failure to punish a guilty person. I don't want to go there. But in order for the death penalty to have the advantages over life imprisonment that pro-death-penalty people think it has, it seems as if we have to go there.

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Execution Without Appeals--A Death Penalty That Gives Us What We Say We Want From It

Two favorable effects of the death penalty that make it seem desirable are that it is less expensive to execute than to imprison, and that it capital punishments deters capital crime better than life imprisonment. Both of these are compromised by the long appeals process, which is more expensive than housing a criminal for life, and also dilutes the deterrent effect, since a murderer probably won't be executed until long after they were initially convicted. Some people say that there is a class of "open and shut cases" which need not be appealed. Thus, we can get a swift execution without the lengthy appeals process.

To get what this suggestion is looking for you have to implement a special threshold of evidence where there really is no possible doubt, and no chance for a future exoneration. While we can, in a retail sort of way, mention cases where this level of evidence was achieved, the problem is that our system has to identify certain characteristics of cases that are so open and shut that we can't imagine an exoneration. The criteria for a conviction is evidence beyond a reasonable doubt, but even there we have had exonerations. In the case of Casey Anthony, one theory was that the jury was reluctant to convict because they would then have had to consider a death sentence, and since certain kinds of evidence were lacking, they didn't want to take that risk. And "beyond reasonable doubt" is a threshold of evidence doesn't mean that "beyond possible doubt." I don't think the development of an "open and shut case" category where the appeals process could be circumented is workable, although I understand why it would be appealing to many people.

There was the famous arson case in Texas---guy's name was Willingham, where the fire science of the time proved beyond a reasonable doubt that he had killed his family by arson. Only, the fire science of today contradicts that, but, unfortunately, he was executed and wasn't around to be released.

The question is whether it is the extent we are going to allow the risk of executing an innocent person.  I think that that is a horrible side effect of our system. While the system is run by human beings, I think it will remain fallible. If there is a death penalty, then you can't eliminate the possibility of it being used on an innocent person.

To really have a death penalty that does for us what most death penalty advocates would get from it, what you have to do is accept a higher risk than we already have of executing innocent people. (You can't make an omelette without breaking some eggs).  What would really help with the deterrent effect would be getting rid of innocent until proven guilty. That's what they do in some countries. In the People's Republic of China, they would execute the prime suspect within a few weeks, and they did get a real deterrent effect there. 

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