“If you can’t accept human fallibility, then I don’t know how you can get out of bed in the morning,” opined Professor Stephen Henderson
when discussing the possibility of wrongful executions. He made the comment after pointing out that a wrongful conviction of any kind is devastating, saying, “I’m not at all confident that those injustices are more common in death penalty cases than non-death penalty cases,” before noting that death penalty cases are likely to be more heavily scrutinized.
Henderson’s comments came as part of a debate about the death penalty with Professor Jules Epstein
. Sponsored by two student organizations, the Federalist Society and American Civil Liberties Union, the debate offered students the opportunity to hear a spirited and nuanced debate between the two professors on the evening of Monday, February 9th. Federalist Society
President Brian Kisielewski offered a brief introduction at the beginning of the program before turning the show over to the Professors.
Professor Henderson opened the debate with a discussion of the philosophical underpinnings of the debate about capital punishment, citing both the retributive and utilitarian arguments for the death penalty, but he focused primarily on the utilitarian argument. He focused particularly on deterrence and incapacitation, noting that the death penalty is “the ultimate form of incapacitation” for a convicted criminal.
Professor Epstein countered by noting “death penalty cases take longer to try,” and that “the studies supporting the deterrence argument are flawed.” He also asserted that, “The more you execute, the more you condone killing,” and he also observed, “Unless you have a mandatory death penalty, you run the risk of uneven application.”
The second topic examined whether or not the administration of the death penalty could be done fairly, and Professor Epstein showed a series of power point slides offering a statistical analysis that demonstrated that jurors in Pennsylvania did not understand the law in regards to the death penalty and how to apply it. Professor Henderson countered with the suggestion that this demonstrated that the jury system is flawed, and that any issues with the death penalty are simply a symptom of the real problem.
Other topics addressed included alternatives to the death penalty, the death penalty and race, what crimes should be eligible for the death penalty, and a cursory examination of methods of execution. The spirited debate ended with Professor Epstein encouraging the students present to continue to organize and participate in such events because they make for a vibrant and engaging law school experience.