gambling on capital punishment.. the only winning move is not to play

I was recently asked the question “Would you rather an innocent person be executed or a guilty person freed to kill again?” in a debate on the death penalty.

This seems a common enough question in such debates that I’ll attempt to actually answer it despite the fact that I feel it is a terrible question (among other things it assumes that all murderers plot to kill again, neglecting crimes of passion and human potential for remorse, it also neglects the option of a prison sentence which I will address).

For the sake of argument let’s take a look at the two options provided:

Option A: Put them to death.

• innocent: The real killer is still free and not being pursued (negative). The state has killed an innocent person, doing the very thing which it is condemning (negative).
• guilty: the public is safe from this individual (strong positive). The state has killed a person (neutral).

Option B: Free them.

• innocent: The killer is going to still be free but is still being actively pursued (neutral).
• guilty: The public is in danger presuming the murderer may kill again. The killer is still being pursued so the person may be caught again. (negative)

The best outcome possible given these options would be A-guilty.   In the other three options the killer is still free.

Let’s assume that no matter what, if free, the killer is going to kill 3 more people. A-innocent is the only option that results in 4 deaths. The first suspect dies at the hands of the state, which regardless of how you feel about the death penalty is a tragedy when the person is innocent. Option A therefore is a high-stakes gamble. It could end the killing, or it could result in the worst possible outcome. Option B leaves the killer on the loose, but both options involve continuing the search. It is possible that after 1-2 of the following killings the killer will be caught, even if it was the person captured the first time. These options are much lower risk.

Personally, the thought of the state killing an innocent person is so repugnant that I would choose B over A. But this is a matter of individual conviction.

As I mentioned however, this is a faulty question as it leaves out the more likely alternative:

Option C: Jail them for life.

• innocent: they will spend time in jail until they either can prove their innocence or die (negative, but less so than killing them).
• guilty: the public is safe from this individual. (strong positive)

C-innocent is somewhat worse than B-innocent, as an innocent person is in jail for some amount of time, and probably during this time the real killer will have the opportunity to strike again. C-guilty however is much better than B-guilty as it puts the criminal away.

The ranking of the possible outcomes is:

• Criminal is captured/punished: A-guilty, C-guilty (the ranking of these depends on your view of the death penalty)
• Criminal is not captured, nobody is punished unjustly: B-guilty, B-innocent
• Criminal is not captured, innocent person is jailed: C-innocent
• Criminal is not captured, an additional life is lost: A-innocent

B-guilty and B-innocent are almost equal as in both cases the search continues and so the guilty will eventually be caught (most likely the person if freed under charges of insufficient evidence will be closely monitored).

Which is the better outcome between A-guilty or C-guilty is determined by one’s view of if the government should use capital punishment at all. Both seem better than a murderer on the loose however.

There are a myriad of other effects outside the immediate scope of the trial, for instance capital punishment of a successful criminal (A-guilty) may be a deterrent. Capital punishment of an innocent criminal (A-innocent) may damage the legitimacy the judicial system in the eyes of the public.

A rational evaluation however does not seem like the law should include an option whereupon the execution of an innocent person would take place. Therefore Option A would be thrown out unless there is a case in which one can say with 100% certainty that the suspect is indeed the culprit. Limited examples to spring to mind, but DNA evidence or even a confession do not constitute 100% as various cases have shown.

Mass murder as seen in genocides and terrorist attacks on civilian targets often has a highly identifiable culprit that does not fear but rather revels in their spotlight. In these cases 100% seems like a fair assessment of their guilt.  Despite the fact that these cases also correspond to the most heinous of crimes, I would encourage people to use this reasoning as a basis for their support of the death penalty in such extreme cases.

Justice must be based in reason and not in passion or indignation at the act committed.

edit: Discussion that ensued leads me to realize I should clarify that I am well aware the game-theory approach taken here is oversimplified, for instance it would be proper instead of choosing a fixed number of subsequent killings to have some sort of probability.  I chose a constant murder rate because the question initially posed assumes one.

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