P.S. We assume it is better to have a 100 serial killers go free than to have one innocent person executed. — James Riley

Why would we assume this? In what way is that better?

Why would we assume this? — DingoJones

We assume it for the purposes of the dilemma.

I think you need more parameters. Are we trying to preserve the most innocent life? What would the 100 serial killers going free have to do with the structure of the dilemma you presented?
Is our goal to get the death penalty removed? Whats the priority?

Yeah that's atheism for ya. How any decent people who are that manage to keep their sanity is beyond me.

P.S. We assume it is better to have a 100 serial killers go free than to have one innocent person executed. — James Riley

Actually the saying goes, it's better for 10 criminals to go free before an innocent person is harmed. But.. why are the criminals criminals. Because they break the law and harm innocent people. Lol. See they know people are stupid and they prove it by saying these things that people repeat. Lol. It's really not funny, I mean it is and will be, later.. but now is not later. I think anyway.

You have limited resources. Are they better spent trying to prove state fallibility in an effort to get the death penalty removed, or do you try to save a single life? — James Riley

It is better to spend limited resource on eliminating the death penalty. Next best is proving that the state erred in its prosecution of specific capital cases, thus revoking the DP for those wrongly sentenced.

The state of Illinois found many of its capital convictions being overturned because of lack of evidence, or even falsified evidence. Eventually the state repealed the DP.

There are several problems about the DP: 1) it doesn't deter capital crimes; 2) the DP apparently seres oppressive purposes in some states; 3) it is somewhat ambiguous whether a life-time spent in a prison is more or less punishment than execution.

The paradox of capital punishment is this: to my reckoning, mind you this isn't an indepth analysis, the most heinous crimes, crimes that seem to fit the death penalty like a glove - made for each other - are usually committed by people who seem to have one or other severe psychological pathology. The irony is that such people qualify for the insanity defense and are for that reason saved from the gallows. This might be a gross oversimplication though but the general rule, if we could call it that, seems to be that, paradoxically, the more appropriate the death penatly is the less appropriate it is (only an insane person would cross the line between crimes punishable by incarceration and crimes that carry a mandatory death sentence). It's the inverse of the catch-22 scenario in which a person is declared sane because he wants to be declared insane, the desire to be declared insane serving as the evidence that he's sane. Likewise, a person who deserves to be put to death shouldn't be, the reason for that being that person deserves to be put to death The caveat here being the criminal sentenced to death must suffer from some kind of mental illness that severely limits the choices he/she can make.

Thanks you for your thoughts, all. I was trying to set up a dilemma with parameters which would have folks address a single point:

Notwithstanding the difficulty of proving it (including the resistance of the state), would not evidence that the state had killed X number of innocent people be more persuasive in the debate than evidence of a living person's innocence?

When I was young, people would always talk about what secrets might be lost if we were to destroy the rain forest. I thought how much more persuasive it would be if we could prove what had actually been lost. We can't, of course, and that's the point. For instance, there was a plant on this acre of this section of the rainforest that would cure all cancer with no side affects. But alas, we lost it because we violated Aldo Leopold's admonition that the first sign of intelligent tinkering is to keep all the parts.

The death penalty issue is similar, but with the actual possibility of providing proofs after the fact that would stop future mistakes. Granted, the state wants finality and, after having gone through countless appeals and lots of money and time and effort, it does not want to aid in the undermining of itself. But I would argue that any sovereign worthy of being American would not stand in the way of demonstrating it's fallibility if doing so would render it less fallible.

I appreciate the intellectual approach you are taking with this problem. But I think you may be barking up the wrong tree.

To rephrase, the dilemma is whether to use finite resources to exonerate the living, or whether to use them to vindicate the dead.

The problem is that the law (former law student here) does not have the same epistemological standards as science or philosophy or other disciplines. In science for example we have very reliable indicators such biomass which we can measure in metric units. Less biomass in kilograms = less forest = less life = less biodiversity, etc.

However, this is not the case in law. Legal concepts such as "guilt" or "innocence" lack objectivity because of the myriad of factors involved. The quality of your lawyer, the integrity of the police, the impartiality of your judge, the quality of the evidence all play a part.

Therefore, there is no way to weigh the importance of the exonerated living vs the vindicated dead if "guilt" and "innocence" are not fit for purpose as reliable indicators of the right thing to do.

or whether to use them to vindicate the dead. — BigThoughtDropper

The thing is, I'm not looking to vindicate the dead. The dead are dead, and the state will be very happy to make that argument when asked to aid in proving the state screwed up in killing him. Rather, I'm looking to convince a sovereign of it's fallibility. Exoneration of a living innocent can be used by the state to prove it's case (i.e. the system works). Proving the state killed an innocent person would go further, in my opinion, to force the state to second-guess it's infallibility. And, where it is better that 100 serial killers go free than to kill an innocent man, the state would be forced to revise it's stated position on that point. Maybe "Well, we can afford to kill an innocent guy if it means we can kill all these dirt bags." That is a whole 'nother game.

An exoneration would be DNA proof and confession it was X that killed Y, not innocent Z. But the state might not even entertain that because, well, Z is dead. "Too late now!"

Even worse, the attorney's for W are more concerned about W, because he's still alive; not thinking that had they worked on Z there might not be any more Ws. So we end up looking at Ws for the rest of our lives.

I am sure that you are right in saying that if it were proved, without a shadow of a doubt, that the state killed an innocent person, it would go further than proving that the state almost killed an innocent person.

However, to go back to what I was saying about the very murky and subjective concepts of law such as "guilt" and "innocence", due to current legal epistemological standards I am not sure proving the state killed an "innocent" person would be the smoking gun you make it out to be.

You really need to think hard about what "proof" means in a legal context. it is not the same as in a scientific context. The scientific context seems to be where you are coming from.

However, to go back to what I was saying about the very murky and subjective concepts of law such as "guilt" and "innocence", due to current legal epistemological standards I am not sure proving the state killed an "innocent" person would be the smoking gun you make it out to be. — BigThoughtDropper

Having practiced law for over a decade, I have an idea. Those subjective concepts you address apply to any case, not just the one I propose. I've already stipped to the difficulty. It's difficult in any case. But difficulty aside, where are limited resources better spent?

fallibility — James Riley

Everything seems to turn on that single, 11-lettered, 5-syllabled, word. The death penalty presents itself as an option of punishment when innocent lives have been taken. This, to me, implies that the judicial system that sentences people to death, that system must itself be infallible. After all, if it isn't and it isn't, innocent people could be executed and that's exactly what capital punishment is reserved for. Basically, given that to be human is to err and we are human (right? :chin: ), we should use extreme caution when we're considering hangmen, firing squads, electricians, prison doctors, as an option - they're all, as the police are so fond of saying, "armed and dangerous."

I agree. Now, how best to get the state to stop? Trying to make it work, where, when successful, it gets to say "see, it works!" Or proving it failed, by it's own standards, and has killed the innocent?

I can understand the desire to get after a case of an innocent guy on death row, especially if you are the guy, or his loved ones, or you have great empathy. But, from an objective view of 10k feet, I think people should dump a metric shit ton of time, money and resources into showing the state to be a killer of innocent people.

yes, well, I think my point is that, with either of the options you present, the resources will be spent on lawyers fees with no tangible result.

That is not a very intellectual thing for me to say but the dilemma you pose, at the end, is about the real world and hard choices made in the real world. It is not so much about abstract concepts.

I understand as a career lawyer you might be protective of the institution you are a part of and that is where you and I probably diverge - I think Western common law has become an elitist sham that is molded by the upper echelons of society and excludes ordinary people. It is a system that works, but only insofar as it will not upset its fundamental tenats that belong in the 19th century.

I agree. Now, how best to get the state to stop? Trying to make it work, where, when successful, it gets to say "see, it works!" Or proving it failed, by it's own standards, and has killed the innocent?

I can understand the desire to get after a case of an innocent guy on death row, especially if you are the guy, or his loved ones, or you have great empathy. But, from an objective view of 10k feet, I think people should dump a metric shit ton of time, money and resources into showing the state to be a killer of innocent people. — James Riley

What I don't understand is this: In the modern world, the ancient form of justice, an eye for an eye is viewed as barbaric and, more to the point, a miscarriage of justice and yet, capital punishment, which is just that - an eye for an eye - has many strong supporters. This kind of cognitive dissonance is going to do great harm if not tackled soon and with a "vengeance".

It is not so much about abstract concepts. — BigThoughtDropper

My concepts are not abstract. They are very, very real. Very real.

I understand as a career lawyer you might be protective of the institution you are a part of and that is where you and I probably diverge - — BigThoughtDropper

You don't understand anything if you think I'm a career lawyer. I haven't practiced law for over 20 years. Nor am I protective of it. See thread called "A Law is a Law is a Law."

I think Western common law has become an elitist sham that is molded by the upper echelons of society and excludes ordinary people. It is a system that works, but only insofar as it will not upset its fundamental tenats that belong in the 19th century. — BigThoughtDropper

We might actually agree on that, that has nothing to do with the question at hand.

In the modern world, the ancient form of justice, an eye for an eye is viewed as barbaric and, more to the point, a miscarriage of justice and yet, capital punishment, which is just that - an eye for an eye - has many strong supporters. — TheMadFool

Different arguments have been made support of punishment generally: Specific and General Deterrence, Incapacitation, Rehabilitation, Retribution (eye for an eye), and Restitution. The death penalty is not applicable to some of those, obviously, but the others still provide a reed to lean on for some folks. In the end, though, I think they could all be satisfied through life without parole.

Different arguments have been made support of punishment generally: Specific and General Deterrence, Incapacitation, Rehabilitation, Retribution (eye for an eye), and Restitution. The death penalty is not applicable to some of those, obviously, but the others still provide a reed to lean on for some folks. In the end, though, I think they could all be satisfied through life without parole. — James Riley

I still can't get past the obvious inconsistency therein. If you feel appalled by someone's hand getting chopped off for having done the same thing to another person, you should be equally, if not more, disturbed by executions for the crime of murder.

If you feel appalled by someone's hand getting chopped off for having done the same thing to another person, you should be equally, if not more, disturbed by executions for the crime of murder. — TheMadFool

Some of us aren't that appalled by it, if it's proved out to our personal, subjective, self-righteous satisfaction. But that never happens so I'm against it. I'm too fallible to want to live with the possibility, so why bother? I've often said, if I was governor and the last hope for a convict, I might be willing to pull the trigger myself but I damn sure would never let an executioner do the job for me. If I don't have what it takes to stare them in the eye when I kill them, then it won't be done on my watch.

I guess all I have to say in response is to repeat the crux of my argument which is that if this is a scenario is rooted in reality what is the point of spending any resources if the institutions of law will not permit the result you desire? Namely, proving one way or the other whether capital punishment should be abolished?

Unless, you assume that the legal system can allow such a thing, in which case it becomes a question about politics. Can the government be embarrassed into making a change? What will embarrass it more: an exonerated living or vindicated dead? As you say the latter is a much more impactful "cause celebre" for the anti-death penalty party. I think this is obvious.

The problem is the route to vindicating an executed prisoner on death row. We could turn our resources towards this but what possible good could that do? Prisoners on death row spend an average of 10 years awaiting execution. After execution, witness evidence is even harder to obtain or rely on than prior to execution.

You are bouncing around within the parameters. I guess that's a good thing, since some folks wouldn't even acknowledge them, or keep their eye on the ball. But, now that you see them, and find the answer obvious, are we to let the difficulties I already stipulated to, and which you outline in your final paragraph, stop us from the effort? Has anyone ever tried? (Honest question, I don't know). But it seems to me that if all the resources spent the living were spent on the dead, we might quicker arrive at that point where there are not any more dead.

Whether it's a political decision, or a court in response to some living convict's defense pointing to all the innocent dead, it might kill the death penalty.

I'd be happy if I knew Amnesty.org or some other outfit had at least tossed it on the table at their monthly strategy meeting. However, because "we" (?) never hear how the state F'd up, I'm guessing it hasn't been tried. Or are the anti-death penalty organizations agreeing with the state that the system works? Or have they crunched the numbers and decided resources are better spent on the living? (I'd like to see those meeting minutes.)

That's not necessarily wise, though, since these released serial killers could end up murdering WAY more than just one innocent person!

FWIW, in addition to the risk of innocent people getting executed, I think that the strongest argument in favor of the death penalty is that people are literally hostages of their genes and biology to a certain--indeed, possibly even large--extent. In a very real sense, genuinely deep free will doesn't really exist; rather, a lot of our choices are indeed shaped by either our genes or our biology (which could involve either genes or other factors). If people can't help but be murderers, then executing them is cruel, but they certainly do need to be kept behind bars--maybe even in solitary confinement in extreme cases--in order to prevent them from ever actually harming other people if they've already harmed someone and been convicted of this.

That's not necessarily wise, though, since these released serial killers could end up murdering WAY more than just one innocent person! — Xanatos

Yeah, that debate has been going on for a long time. I think we came down on the side of not punishing an innocent man.

Yeah, that's probably prudent, all else considered.

strongest argument in favor of the death penalty is that people are literally hostages of their genes and biology to a certain--indeed, possibly even large--extent. — Xanatos

That almost sounds like an insanity defense, in that the person lacked the mens rea, or an ability to control themselves. That is actually and argument against the death penalty. If my genes or biology made me do it, then it wasn't me.

You have limited resources. Are they better spent trying to prove state fallibility in an effort to get the death penalty removed, or do you try to save a single life?

P.S. We assume it is better to have a 100 serial killers go free than to have one innocent person executed. — James Riley

You present 2 scenarios with same problem:

1. Multiple innocent people waiting for execution on one side
2. Single innocent person waiting to get executed on another side

Assuming these scenarios are happening in same time then I would choose first scenario by spending resources on proving state fallibility because odds are I'm going to save more than one person even if proving state fallibility fails.

I'm not entirely sure if it would be viewed as being completely comparable to an insanity defense, since these people would have been sane and fully mentally aware of what they are actually doing, but the reason that these people would have had the urges and temptations to murder in the first place would have likely been due to their genes and/or biology. So, it's not an insanity defense, but there is an element of "Nature made me this way! It's not my fault that I derive pleasure from murdering people!"

This is also why gene therapy could significantly change things in regards to this. If we are actually able to successfully alter criminals' biology to make them less violent and also less capable of deriving pleasure from evil and forbidden/illegal acts, then there could indeed be legitimate arguments for reducing their sentences--possibly even significantly. Of course, they might also need to go into a witness protection program or something after getting released because otherwise they could simply get lynched or something by a "vigilante justice" mob which is still going to be angry at them for what they did before in spite of their genes and/or biology already being changed since then.

And Yes, I do think that if gene editing/gene therapy of human adults will ever actually become possible to such an extent, then theoretically, *maybe* it could eventually be possible to alter the genes and/or biology of mentally and psychologically healthy, decent, and well-behaved people in order to turn them into brutal, sadistic, sociopathic criminals and even serial killers. So, Yes, I do stand by what I said that who we are is probably to a very large extent a factor of our genes and/or our biology.

These two blog posts might be of interest to people here:

https://jaymans.wordpress.com/2011/11/17/what-if-its-not-their-fault-the-myth-of-free-will/

https://jaymans.wordpress.com/2013/09/25/no-you-dont-have-free-will-and-this-is-why/