Xrlq has posted a response to my post suggesting that the death penalty is appropriate only when guilt has been proved beyond all possible doubt. Xrlq’s position is rational, and he makes some good points. Ultimately, however, I am not convinced. To explain why, I want to clarify and respond to a few points.

Xrlq says: “Removing the ‘reasonableness’ standard, for any particular penalty virtually guarantees that the standard will never, ever be met.”

Xrlq’s point may have some merit, given the way I worded the proposed standard: “beyond all possible doubt.” I am not wedded to this language. Putting standards into language is a very difficult task. The “reasonable doubt” standard gives jurors fits, every day, in courtrooms across the country.

What I am grasping for is a standard that allows jurors to feel a sense of true certainty that they have the right person. There may be better ways to express this. Perhaps the standard should be stated as “proof to an absolute certainty.” Perhaps other language would be more appropriate.

However it is worded, I intend for my proposed standard to be a real-world standard. I don’t intend for jurors to engage in a Matrix-style philosophical debate about whether we really exist, or whether we are really just brains in jars with attached electrodes. What I want is for jurors to feel utterly convinced of the defendant’s guilt — to be just as certain as they are that airplanes fly in the air, or that a place called “Africa” exists even though they haven’t personally been there.

I think Roberta, a commenter to my original post, understands what I mean. In a comment to that post, Roberta says she prosecuted a death penalty case while personally applying the “beyond all possible doubt” standard — and she obtained a death verdict. All the while, she presented the case to the jurors just as if she had been required to prove the defendant guilty beyond all possible doubt. Even if the jury had been instructed according to my proposed standard, I’d bet that she would have obtained the same result. I think Roberta’s experience indicates that my more stringent standard could work in the real world.

My bottom line is this: I want jurors to feel absolutely confident that they won’t find out at some point down the road that someone else is really the killer. If that means more life sentences, I’m willing to live with that.

I also disagree with the logic of comparing the death penalty to other governmental decisions that may cost lives. I don’t find the situations comparable. In a criminal case, the government has a higher duty to avoid mistakes, because the government is directly asserting its power over an individual, as opposed to making a decision that leaves people free to act, but has the collateral consequence of resulting in more deaths. I think that waging war with draftees is a comparable governmental decision. The ones cited by Xrlq, I think, are not.

Viewed more generally, however, Xrlq’s point is that we should always weigh the costs of any public policy decision against the benefits. I agree with this general point, and this logic applies equally to the death penalty. The possibility that lives may be saved is a factor that should be weighed in the equation.

Is the death penalty a deterrent? I think it is. However, I am not convinced by the study cited by Xrlq. I have not reviewed the study, but I am highly, highly skeptical of any “study” that purports to quantify the number of lives saved by each execution — just as I am very skeptical of “studies” that purport to show that the death penalty has no deterrent effect. I simply don’t believe that any study can quantify such intangibles with anything approaching scientific precision. I am confident that any reasonably competent expert could probably take apart the study cited by Xrlq and demonstrate it to be junk science.

That said, I agree with the assertion that the death penalty likely deters murders. I find this intuitively obvious. For one thing, attaching a high price to premeditated murder shows that we take the crime seriously. Inevitably, this will have an immeasurable but real effect in shaping society’s attitudes towards that crime. Also, there is no question that the death penalty specifically deters murder in some cases. Murderers sometimes murder others in prison, or escape and murder people outside of prison. If they’re dead, they can’t do that.

Viewed from a strictly rational viewpoint, if we believe capital punishment deters, perhaps we should be willing to live with some risk of mistake.

But politics is not always rational, and we have to be realistic. If evidence of one or more wrongful executions comes to light, we may well lose the death penalty, as I argued in my post. I just don’t think the public would stand for many such examples.

Would this be irrational? Arguably. But in politics, when rationality squares off against strong and widespread public sentiment, rationality loses every time.

I support the death penalty, for the reasons I have discussed (among many other reasons). Supporters of the death penalty, like Xrlq and myself, would do better to preserve the death penalty by working extra-hard to make sure it retains popular support, rather than advancing the losing argument that you gotta break a few eggs to make an omelette. People just aren’t going to buy it.

Finally, there is no connection between the logic of my argument and the sloganeering of someone who wishes to “Free Mumia.” The only Mumia-related slogan that might flow from my proposal is far less catchy: “Let Mumia spend the rest of his life in prison!” I have no sympathy for Mumia, based on what I have read, and I don’t want to get sidetracked into a discussion of the facts of his case. But nothing about my proposal would free the guy.