Bill Snedden

Don't you think it's also reasonable that we might want a consensus on how a system of justice does that which we want it to do as well?

IMO, that's really more to the point that The AntiChris is raising. Torture might be an extremely effective method of getting what we want out of a system of justice, but do those ends justify the means? To put it into the terms of your desideratum, as you say, torture may enable a regime to provide the greatest good for the greatest number, but is that the only consideration we would ever want to make? Don't we have a right to be concerned over the means as well as the end?

Don't we really need to answer that question with every form of punishment we establish? Not just what we want as a result, but how we want to get there?

Regards,

Bill Snedden

bd-from-kg

Mike Rosoft:

To see what’s wrong with your statements, I’ll examine the second one first. I take it that your point is that since an unreformed criminal is (usually) a danger to society, such criminals should not be released. (Otherwise I don’t see what your point could possibly be.) But let’s look at a concrete case. Brown was convicted of stealing cars. The maximum sentence for this is (let’s say) ten year in prison. The ten years are now up, and Brown has been a model prisoner. But a “reform verification” board has determined that Brown probably hasn’t reformed: it’s likely that he’ll steal a car again if he’s released. So they decide to keep him in prison until he has reformed.

The problem here is that Brown is no longer being kept in prison as a punishment for what he has done, but strictly to prevent him from doing what the reform board fears he otherwise will do. But this is manifestly unjust. How is this different from simply locking someone up who’s never committed any crime because a psychological evaluation has determined that he’s likely to commit crimes in the future? (Shades of Minority Report!)

What this example shows is that, if we’re interested in justice, locking people up cannot be justified on the basis of what they are or are not likely to do in the future; it must be based on what they have done in the past.

Now let’s turn to your first statement, and consider the case of a criminal who can be reformed. Heck, forget about “can be”; let’s look at a prisoner who unquestionably has reformed. Two years ago Applebee kidnapped a young girl, abused her sexually in unspeakable ways, tortured her, and killed her. He was convicted a year ago and sentenced to life. but now he’s a changed man. Everyone agrees that he’s genuinely remorseful about what he did; that he’s wracked with guilt over it. Moreover, he’s now know as a man of the utmost integrity and even moral wisdom. His concern for the welfare of all of the other prisoners if manifest, and no one has the slightest doubt that it’s real. Should he be released on the grounds that he’s no longer a danger to society? I’m afraid not. He’s barely begun to pay the [price for what he did. Just as in Brown’s case, we cannot base the decision as to whether to release him on what he’s likely to do in the future; it must be based on what he did in the past.

Who said anything about overturning convictions? I say only that they have the time and opportunity to make their case.

Proving that innocent people have been executed does help those who are now on death row. If they can come up with a significant number of such cases, it will almost certainly lead to the abolition of capital punishment. Don’t you think they know that?

Oh, please. Obviously this wasn’t an accusation. the point is that AI has lots of time to review cases of people who have been executed and try to prove that some of them were innocent; it’s not as though they’re trying to mount a revolution, which would take every ounce of energy they have available. Their claim that they just don’t have time for this is disingenuous.

Perhaps you can show me the connection between Britain’s abolishing CP and the discovery that at least one innocent person was executed. Are you saying that this wouldn’t have happened if Britain had retained CP? If so, on what grounds?

Ah, yes. This is a famous (or notorious) study. Since you seem to attach so much importance to the possibility of executing innocents, I’m going to discuss it at length.

First, here are some comments from Dudley Sharp of Justice for All:

Ann Coulter summarized Cassell and Markham’s findings about the methodology used in Bedau & Radelet in her June 20, 2000 column The last guys 'proved innocent':

Finally, here are some comments by Paul Cassell himself about the Bedau-Radelet study, from a statement to the House Judiciary Committee in 1993:

He then points out that:

(He proceeds later to lay out the facts of this case in a way that makes it quite clear that Adams was indeed guilty.)

Cassell continues:

Supporting details can be found in the original paper.

Cassell confirms the statements made in the papers cited earlier, and states flatly that based on his analysis of all of the relevant cases cited in Bedau-Radelet:

Not “There’s no proof that any innocent person has been executed since 1945” but “No innocent person has been executed since 1945.” He’s pretty darn sure of himself on this point, and if you read the relevant section you’ll understand why.

He concludes:

bd-from-kg

Bill Snedden:

First, it’s not an “intuitive” belief. It’s based on extremely well-established principles of human psychology. The only way that CP could fail to reduce the murder rate would be if something like the “Alonzo effect” exists. But aside from the fact that this seems intuitively implausible, there’s no evidence for any such effect. In the absence of empirical evidence for a hitherto unknown phenomenon, the only rational policy is to assume that it doesn’t exist.

Second, I’ve spent some time explaining why the fact that the older studies fail to show the expected effect should not give us pause. It’s to be expected that such studies would fail to detect the effect given the extreme noisiness of the data. (Look at it. The murder rate in each state jumps up and down from year to year for no discernible reason much more than any plausible estimate of the number of lives that might be saved by the deterrent effect. You wouldn’t expect to detect a “signal” in all this noise unless the signal were very strong indeed, for the same reason that you wouldn’t expect to pick up a distant, weak radio station in the middle of a thunderstorm.

Think about what I pointed out earlier. The Erlich study shows a deterrent effect. But small changes in the model (e.g., in the functional form used to model some of the effects) cause the effect to disappear. Why do you suppose that is? The only possible explanation is that the noise level is simply too high to detect the signal with any reliability. And yet the strength of the effect that Erlich came up with is around eight lives saved per execution. This is a pretty strong effect if it exists. But the data Erlich was working with (which was “state of the art” at the time) was so noisy that even assuming that it exists it was essentially undetectable.

Epidemiological studies have the same problem; they are quite often unable to pick up an effect that shows up clearly in controlled clinical trials. There’s nothing unusual about this. It’s well known that an effect has to be very strong indeed to be detectable in uncontrolled, “real world” data. It’s a fallacy to conclude from the fact that an effect isn’t detected in this kind of study that it probably doesn’t exist.

If all things wsere not equal (by which I assume you mean that there’s an “Alonzo effect”) it would be very surprising if the opposing effects turned out to be equal (or even very close to being equal). After all, a priori we have very little idea of the strength of either effect and no reason at all to expect them to be anywhere close to being equal in magnitude. So given the factors that I mentioned above, the data (i.e., no detectable effect) is explained just as well by the hypothesis that only the deterrent effect exists as by the hypothesis that there are opposing effects that tend to cancel. And the “one-effect” hypothesis is the more parsimonious, so by Ockham’s Razor it wins.

But at this point I have to remind you that it’s no longer true that no effect can be detected. The best studies , namely the more recent ones using more sophisticated methodology and much better (more detailed) data than was available in the past, have been consistently picking up a very substantial deterrent effect.

I suspect that we’re finally getting to the real issue here, at least as far as you and Chris are concerned.

The old adage “the ends don’t justify the means” can be taken to mean two very different things:

(1) The means in question have effects in addition to the ones we’re aiming for (i.e., the “ends”), and these effects are sufficiently negative to outweigh the desirability of the effects that we are aiming for.

(2) The means in question are simply wrong in themselves. No matter how desirable the consequences of using them might be, even after taking absolutely all effects, however distant or indirect, into account, it would still be wrong to use them.

Now the first interpretation is perfectly intelligible, even to a non-theist. But the second one isn’t. The only way (so far as I can see) that a means could be “wrong in itself” regardless of consequences would be if it had an intrinsic property of “ought-not-to-be-doneness”. But (as Alonzo will be happy to elaborate) the concept of an intrinsic property of “ought-not-to-be-doneness” makes no sense in a naturalistic framework.

Thus, if you want to show that a certain measure should not be used, the only way to do it is to show that using it has undesirable consequences that outweigh the desirable consequences (such as deterring the kind of activity for which it is to be used as a punishment). If you can’t show that, you have no case against using it.

That’s why I went to some pains to produce consequence-related reasons why I think that using torture as a punishment would be undesirable. Now it’s your turn. Give me some consequence-related reasons why capital punishment is undesirable.

As I said in my reply to Chris, if you're unable or unwilling to do this, there's little point in continuing the discussion since we have totally incommensurate ideas of what the desideratum is. I flat don't understand deontological moral theories.

The AntiChris

bd-from-kg
Yes, but what you didn't do was to explain how you "objectively" came to the conclusion that your undesirable consequences outweighed the benefits of torture.
I think this misses the point. (Unless you're suggesting that there are no undesirable consequences of CP, which I'm sure you're not)

The point at issue here (for me at least) is how we assess the impact of the consequences of a particular punishment on what we wish to achieve and to what degree we can do this objectively.

You said:
But this is the problem - as far as I'm aware there exists no such consensus. At least not to the extent that we can confidently state that any particular form of punishment objectively meets our needs any better than any other. Any judgement will be based either on what we, personally, value or on what we assume others value or ought to value.

Now I'm not suggesting that this lack of clear consensus renders debate and argument meaningless - in fact, just the opposite. The only way we can resolve these issues is by argument and persuasion and, ultimately, by a show of hands.

Because of this lack of consensus, any debate about the pros and cons of any particuar form of punishment is, in reality, a debate about what we want from a "system of justice".

Unless you can demonstrate that there is a sufficient consensus on what "what we want the system of justice to do", then the scope for "objective analysis" in determining the effectiveness of any particular form of punishment is far more limited than you appear to be suggesting.

Chris

bd-from-kg

The AntiChris:

Why, I didn’t come to that conclusion objectively. There’s no such thing as “objective” in this context. Haven’t we been through this before?

If I got a great thrill from knowing that people were being tortured and didn’t care what happened to anyone else, I’d probably conclude that torturing murderers was a great idea. Heck, I’d probably think that torturing innocent young children was a great idea. Could you objectively show me that I was “wrong”?

But fortunately there is a great deal of intersubjective agreement about what sorts of things are desirable and undesirable.

Yes. That’s pretty much what I said in my last reply to you. If we can come to some agreement on how to evaluate the consequences of a CP regime vs. a non-CP one, we can have a productive discussion; otherwise we can’t. Or in other words, we have to have at least a reasonable amount of agreement about what makes one state of affairs more desirable than another before we can talk about whether a CP regime produces a more desirable state of affairs than a non-CP one.

I don’t agree. I think that there’s a pretty broad consensus that what we’re aiming for as a society is something like the “greatest good of the greatest number”, where “good” is understood to refer to desired mental states (a.k.a. “happiness”) and the avoidance of undesired ones; or as Alonzo would say, the satisfaction of the maximum number of “good” desires. This can be described in other ways: the “general welfare”, “domestic tranquility”, etc. There are some subtle differences between these criteria, but in practice they don’t really amount to much – certainly as they apply to the justice system.

But what would such “debate and argument” look like? What kind of reasons can you offer for why someone else should desire the same ends that you do? How do you go about “persuading” someone who prefers chocolate milkshakes that he ought to prefer vanilla?

Weren’t you the one who said that “the only way we can resolve this is by consensus?” Voting doesn’t create a consensus (as anyone who remembers the 2000 election must surely understand); it just determines who wins.

Another way to determine who wins is to shoot it out. But in our society, because we have a broad consensus on what we’re aiming for as a society, we have a very strong consensus that deciding what to do by voting is better than doing it with guns (or via any number of other methods, like letting the ayatollahs decide).

Of course I don’t agree about the “lack of consensus”, at least at a fundamental level. I thing that the problem is that a number of people are unwilling to accept that they can’t “have their cake and eat it too”, or in other words, that they can’t have all the things that they desire from the justice system. In particular (as we’ve seen on this thread) a great many people are unwilling to accept the simple fact that capital punishment will deter a number of murders, because accepting it would force them to think seriously about their priorities. What do they desire most: saving thousands of innocent lives, or avoiding the unpleasantness of executing some people? What we see is a policy of deny, deny, deny – of refusing to accept that this is in fact the choice. This has of course been encouraged by a determined, nonstop campaign of misinformation by CP opponents, who are well aware that this is what people want desperately to believe, just as Christianity tells people what they want desperately to believe: that they can receive absolution from their sins and that they can live forever.

Why? The meaning of “effectiveness” with respect to a punishment is not really in dispute: it means “How well (if at all) does it reduce future crimes?” This is a pretty objective question; the only element of subjectivity, so far as I can see, is that people may rate the relative seriousness of various crimes differently. But this doesn’t seem to be a real problem in practice; you don’t see a lot of intense debate over, e.g., whether the justice system is placing too much emphasis on armed robbery relative to embezzlement.

Of course, no one considers the effectiveness of the justice system to be the sole criterion for judging it. If there is a serious disagreement about ends, this is where it is: what else do we want from the system, and how much weight do we give to these other ends relative to the end of suppressing crime? In particular, many people would reply “We want it to produce justice. And this takes priority over all other ends.” This, of course, is a deontological position, and as such is favored mostly by religious people and by some who haven’t thought seriously about moral philosophy. It’s really untenable in the context of nontheism. Naturally consequentialists want “justice” too, but they define “justice” in terms of consequences, and want it because they believe it has desirable consequences, not for its own sake.

This is an example of an important point, and one that often creates a lot of confusion. Most “ends”, on analysis, turn out to be means to further ends, which in turn are often means to still further ends. To think clearly about such things you have to ask yourself whether the ends you have in mind are final or ultimate ends (things that you consider desirable for their own sake) or means to further ends. It often happens that people think that they have an irreconcilable difference about ends when the “ends” then have in mind are actually different means aimed at achieving the same ultimate ends. The disagreement is really, at bottom, a disagreement about how best to achieve these ends. And questions about what means are most efficacious for achieving some agreed-on end are objective.

One other point is worth making. As far as debate or discussion is concerned, it doesn’t matter whether we can achieve society-wide consensus on the criteria for evaluating the results of one policy vs. another. It’s only necessary to have a reasonable amount of consensus among those who are participating. Just as you and I can agree on what movie to go to even if a larger group of people would be unable to.

The AntiChris

bd-from-kg
Sure. I was trying to make sense of what you'd said earlier:

"judgment (on where to draw the line) be based on an objective analysis of what measures will best fulfill the function and purpose of the justice system as we see it."

On reflection I realise that I missed the significance of "based on" in this statement.
But in the absence of this agreement (or at least the absence of an agreement in sufficient detail), any discussion about the relative merits of different forms of punishment is, in part, a debate about how we evaluate consequences.
Yes, of course. But I really don't see how such vague definitions of "greatest good" provide useful guidance for determining which punishment regime yields the "greatest good".
I'm not sure what point you're making here.

I rather doubt that you're suggesting that any punishment is an "end" in itself.

From the context, I can only think that you're saying that if, as I suggest, there were a "lack of clear consensus", then any debate would be equivalent to arguing the relative merits of milkshake flavours.

I'm afraid you're going to have to explain your thinking. (and bear in mind that at no time have I said that there is a complete absence of any consensus, simply that the consensus that does exist is insufficient and lacks clarity.)
This seems rather petty. Of course voting doesn't create a consensus - it's simply one method of determining what the consensus might be.
I have to admit that I've always been a little sceptical of claims that CP has no deterrent power at all or, the even more unconvincing claim, that CP increases murder rates. Anyone who bases their opposition to the CP solely on these dubious claims seems to me to be on rather shaky ground.

I thought it was pretty clear that I was using the word "effectiveness" in this context with respect to what "we want" with the implicit qualifier - taking account of undesirable consequences. If there is no clear consensus on what constitutes an undesirable consequence or what value we assign it, then the "question" is far from objective.
I agree completely, though I'm not sure why you felt the need to make this point. This doesn't seem be a problem amongst non-theists around here.
Sure. But the problem with the CP debate is that we don't have agreed-on ends and the data (actual deterrent effect) is less than conclusive.

Earlier, in a response to Bill Snedden, you argued that if there is a serious doubt about the deterrent effect of CP, any reasonable person would execute anyway on the basis that if it turned out that there was no deterrent effect, all we'd have lost is the lives of some brutal murderers.

The clear implication here is that any undesirable consequences of CP are so insignificant that they have a neglgigible effect on the "greatest good". However I'm having trouble reconciling this with your belief that the undesirable consequences of adding torture to the CP would outweigh the undoubted (by your own estimation) benefit gained by the additional innocent lives saved.

What is the reasoning that led you to conclude that the the death of a convicted murderer, with its attendant psychological cruelty, is of negligible significance whereas the torture of a condemned prisoner has such an impact on the "greatest good" that its use cannot be justified?

It seems to me that your evaluation of the two punishments is disproportionate.

Chris

bd-from-kg

But there can’t be a real debate about this. If we truly agree on the consequences of each regime (CP vs. non-CP), any disagreement about their relative merits can only be a disagreement about ultimate ends. And these are not debatable, because no rational reasons can be given for preferring one set of ultimate ends to another, or assigning different priorities to different ultimate ends. That was the point of my comment about the impossibility of debating the relative merits of chocolate vs. strawberry milkshakes. If we agree about consequences, any remaining disagreement is about personal preferences.

Although this is of course subjective (how can “what we’re aiming for” be anything but subjective?) I don’t see that it’s particularly vague. There’s a great deal of intersubjective agreement about what mental states are desirable. And in any case we can determine which mental states any given person finds most desirable (and even get a rough ranking of relative desirability of various mental states) by asking him (or perhaps by performing appropriate psychological tests). That would determine what “desirable” means with respect to his mental states, and by doing this for everyone we could (in principle) obtain a complete catalogue of the relative desirability of all mental states.

Anyway, perhaps you’d do better to discuss this with Alonzo, who has discussed this sort of thing extensively.

But what you said in your last post was:

The implication seemed to be that a show of hands would resolve the issue (at least after allowing a sufficiently long time for the issue to be thoroughly debated, so that no further “persuasion” was likely). My point was that a “consensus” is far more than a majority. If, say, 51% of the people favor CP and 49% oppose, the “pro-CP” position will win a “show of hands” even though there’s nothing remotely like a consensus. In fact, even a large majority doesn’t necessarily represent a consensus. For example, if 75% favored CP but 25% were passionately opposed on moral grounds, would that be a “consensus”?

In fact, when there really is a consensus about something a “show of hands” isn’t even necessary, except perhaps to formalize it (e.g., to actually enact it into law).

I’m glad that you recognize this; if only more CP opponents did.

Well, that’s just not how the term “effective” is ordinarily used. For example, if the objective were to stop a fugitive on the Brooklyn Bridge, dropping a 10-megaton nuclear bomb on the bridge would ordinarily be said to be very effective, but the collateral damage might be unacceptably high. Of course, if you propose to use the term in a nonstandard way that’s your privilege, but if you want to communicate with other people you need to warn them about any nonstandard usages.

That’s not clear by any means. A good many non-theists here have taken positions on moral questions that can only be considered deontological. Bill Snedden seemed to be taking one on this thread just a while back:

Of course (as I pointed out) it’s possible to interpret this in consequentialist terms, but this interpretation seems pretty strained. This whole post reads exactly like what one might expect from deontologist. And Bill gave no indication that he meant anything other than what his comments seem to mean taken at face value.

My whole point is that these are entirely different kinds of problems. the latter one is a disagreement about an empirical question; it can be resolved (in principle) by further study. The former can’t.

Jeez, are you guys going to keep beating me over the head with this forever? Give it a rest. All that I meant was that it can be argued that a reasonable person would choose CP over non-CP if he was in doubt about the deterrent effect, since bad guys getting killed isn’t nearly as bad as good guys getting killed. (In fact, really bad guys getting killed is arguably a good thing.) I pointed out at the time that if something like the “Alonzo effect” exists (in other words, if CP has undesirable consequences in addition to any deterrent effect) this could invalidate the argument. But it’s true that I find this possiblity quite remote. I’ve stated my reasons for this opinion at some length.

I’ve already stated my reasoning. (See my June 18 post.) But here’s another argument along the same lines:

We (as a society) have no choice but to kill people under some circumstances regardless of whether we have CP. For example, police must be allowed to shoot a dangerous criminal if he tries to escape (or to evade capture in the first place), and lesser force won’t stop him. We also have no choice but to engage in defensive wars from time to time, and in any war a number of people are going to be killed – some of them innocents. As we’ve learned to our sorrow, when dealing with terrorists we have no real choice but to go on the offensive to disrupt the terrorist organizations before they strike, and this may involve an offensive war against another country (as in Afghanistan).

On the other hand, there are few if any occasions where we have no real choice but to torture someone. If torture came to be used as a punishment, it would be something “new and strange”. There are no occasions where torture is now considered acceptable, and no occasions where the government is authorized to use it. Thus it would break a very strong, almost universally accepted taboo. And for this reason it could prove to be brutalizing in ways that CP is not. (In fact, I think the “could” here is too weak; it almost certainly would be brutalizing in ways that CP isn't.)

Now when are you going to offer some counterarguments so that we have something to discuss? Maybe you can start by explaining why you think that CP involves “attendant psychological cruelty”. Is this just another way of saying that the condemned man fears being executed? If so, doesn’t the same apply to any punishment? After all, the point of sanctions is that they’re feared; that’s why they deter.

Bill Snedden

Rules? We don' need no stinkin' rules!!

Alright, bd, I ain't no stinkin' deontologist!

I simply can't have that kind of epithet hanging out there. What will people think?

For the record: I am a consequentialist, albeit not a utilitarian. I consider my moral schema closer to ethical egoism, but a rather odd, societal version of it.

I'm going to respond in more detail later today or early tomorrow, but I wanted to get that straight right away!

I also want to thank you for getting me to think harder about this topic than I have in the past 10 years. When I was a Christian, I came to oppose CP on religious grounds and sort of carried that opposition through my "deconversion" by grounding it in my beliefs regarding proper use of political force and individual liberties. At any rate, I'll allow that you've poked some holes in some of my cherished ideals and I'm struggling a bit for ways to patch them up...

Regards,

Bill Snedden

bd-from-kg

Bill Snedden:

Well! Glad to hear it! As I've said before, I can make no sense of deontological moral systems.

As you probably noticed, I was careful not to state flat-out that you are a deontologist, only that this was the most natural, straightforward interpretation of some of your comments.

Even more glad to hear that. That's the purpose of these forums, isn't it?

Actually my support of CP is no more "written in stone" than Alonzo's opposition to it. It's an uncomfortable position. (But I'd be even more uncomfortable trying to explain to a grieving mother of a little girl who was kidnapped, tortured, and murdered why I was complicit in preventing the government from doing everything in its power [within reason] to prevent this tragedy, and why the guy who did it is going to get three squares a day and free lodging for the rest of his life instead of getting back at least a little of what he gave to her child.) My primary concern has been to debunk what I consider to be clearly unsound (or hopelessly inadequate) arguments against CP. If somone comes up with a good argument against it (and your and Chris's recent posts seem to me to be the only promising direction in which to look for such arguments) I'll be more than happy to consider them seriously. But naturally I'll keep up my end as well as I can. After all, how can you tell whether an argument is good if no one is willing to test it?

The AntiChris

bd-from-kg


Like Bill, our discussion has given me some serious food for thought and my thinking on CP is currently in a state of flux.

I don't think so. Just as you argue that torture is cruel and unusual, I'd say the mental anguish endured by a condemned prisoner is unique and of a completely different order to that experienced by a prisoner serving a life sentence. I suppose the closest equivalent is the mental anguish endured by someone diagnosed with a terminal illness who has a very short time to live.

I think it's the deliberate infliction of this aspect of CP that sets it apart, in a very distinct way, from those situations where we accept the killing of someone in self-defence or when they pose an imminent threat to others.

I've avoided the use of the word "brutalising" so far because I'm not at all sure what we mean by it. When you say torture could "prove to be brutalising", do you mean that society could simply become inured or desensitised resulting in a less compassionate society? Or do you think brutalisation could directly result in an increase in undesirable behaviour?
It's clear that you believe the process of brutalisation occurs when a practice, previously considered unacceptable, is introduced by some authority such as the government. Is there any reason why this process wouldn't work in reverse? If brutalisation is something to be avoided, then wouldn't the abolition of CP and the universal condemnation of all killing other than for reasons of self-defense, protection of others in imminent danger and mercy killing, have a 'debrutalising' (civilising) effect?

In fact, isn't this one of the processes that's lead to our current state of "civilisation"?

Chris