Deterrence and the Death Penalty

The results of statistical analyses performed in the course of America’s fitful progress toward the abolition of the death penalty are unlikely to be enlightening, unless they can offer such results as that vegetarians are highly likely to be deterred, meat-eaters considerably less so, and smokers hardly at all.

Some of us have long been persuaded by cruder observations, such as the fact that, back when theft was punished by public hanging, the crowds watching the execution were at risk of having their purses snatched.

For those who believe in the death penalty, the idea that it may have a deterrent effect is but one dubious arrow in a quiver full of rationalizations.

The argument depends crucially on accepting the premise that, where the state is concerned, omissions and acts are morally on a par. We’ll see how far any rightists who jump on this paper are willing to endorse that principle! (For example, given the very high rates of premature mortality among African-Americans … and the poor generally … are they willing to hold the US government responsible for those deaths and hold that it is morally required for the government to put in place the kind of health care system, infrastructural investment etc etc that would reduce them? No? I thought not.)

The slippery slope section of the paper is amazing, for it concedes that _if the facts were known_ the argument might justify killing the innocent, torturing murderers, (torturing murderers’ children? etc. But the facts aren’t know so that’s alright then! But surely, the authors shouldn’t have stopped there because the government surely has (on their view) a moral duty to find out what the most effective means of deterrence are, and to carry out surveys, experiments, trials etc to discover this? True, (on this view) if it turns out that torturing murderers’ children isn’t an effective means of deterrence then such methods shouldn’t be employed, but not even to research into whether it might be? The height of irresponsibility!

Truly a vile paper and potentially a very damaging one, since we (and the paper’s authors) know full well that it will be seized upon by many who favour the conclusion (and the “Study Shows Death Penalty Morally Obligatory” headline) despite the fact that they would not, in fact, endorse the underlying principles consistently.

Interesting point. How would we relate the Precautionary Principle to the issue of global warming, or preparing for an outbreak of avian flu?

Anyway, good job, Kieran – I never post on guns, but today I may just remind myself why that is.

As there are always a few politicians over in Europe willing to reinstate the death penalty, I thought let’s try to read it. But luckily we’re saved from this silly argument.

The authors state that a “swedish-style welfare state” might reduce murders even more, but implementing that would not be “feasible”. While the death penalty is “feasible” in the US. Thus the death penalty it should be. As the situation is reversed in the EU, that’s the end of the story.

“Political restraints will rule out some policies …”

No morality involved at all.

In general I find myself very disapointed w/ Cass Sunstein. He seems quite smart, and I assume he is. But he writes (or has his name attached) to so much each year that it seems quite impossible for me to believe that it’s all clearly thought out and worked through. And, since he’s so well known and influential among lawyers, this strikes me as quite dangerous and irresponsible. If Kieran is right (I don’t doubt it, but can’t competantly judge myself) then this is a really bad example. Someone ought to get him to slow down and work his ideas over a bit more before spewing them out half (or less!) baked.

Chris, it might interest you to know that Vermeule is thought of as being on the right, while of course Sunstein is on the left.

Why restrict to US data? Is force the only language Americans understand?

I’m sympathetic to Kieran’s argument about the data but isn’t this a bit like the Lancet affair? That’s all the data there is and it suggests what it suggests.

Of course this is nitpicking. Shepherd’s paper is far more informative than the Sunstein one although she cites John Lott without comment and the sophistication of the analysis of non-death penalty factors is much less than that of the death penalty factors. In particular she points out that in 39 states there is no deterrent effect.

That makes the Sunnstein paper, which quotes it, ridiculous. All that is left is an ” if executing a murderer saved 18 innocent lives it would be worth doing” which is kind of trivial. It’s chief content is the “lesson” drawn from Shepherd’s paper. We might draw the opposite conclusion if the lesson they chose to draw was instead that although in 6 states there was a deterrence effect, in 13 states executions actually increased murder rates?

Even given the conclusion there are plenty of other fallacies to overcome. For example the idea that deterrence is some kind of universal constant so that if you have a low murder rate it would be lower if there were more frequent executions. Would Japan have an even lower murder rate than it does if it killed people more regularly? Would Ireland if it introduced the Death Penalty. Is Europe missing out?

Spencer, I imagine that the 18 lives is for the first execution over the threshold. The Sunnstein paper actually has a footnote pointing out that a thousand isn’t necessarily ten times better than a hundred. Could this be to justify not accepting that the extreme morality of Chinese capital punishment is a good reason for Europe to drop its embargo on arms exports to China or US laxity in only selling three times as much as hte EU?

“Thank goodness we have a retributive element to the punishment system which wouldn’t allow killing the innocent”

maybe not on purpose, but as long as we don’t mean to it’s apparently just dandy.

The Texas death penalty system is recklessly or knowingly killing the innocent.

“So I take it you are accepting the retributive parameters on punishment by your comment? Fantastic!”

uh, I said I did last week. More or less on the same page with Mark Kleiman’s excellent post. “Just desserts” as an upper bound, and all that jazz.

Kleiman’s position is NOT the same as Volokh’s position. The thing about punishment as moral condemnation versus sheer vengeance: you can’t commit the same act you’re supposedly condemning. You don’t condemn torture by torturing, rape by raping, or killing the innocent by killing the innocent. I tried to explain this to Volokh but he didn’t really get it.

I think what Chris says above is exactly right. The discussion of objections to consequentialism is appalling. Sunstein and Vermeule offer a feeble reference to Rawls’ Two Concepts of Rules and invoke rule-consequentialism as a defense. But then maybe they should address Rawls’s later rejection of that position? As it is, the claim that deontologists would/could go along with them is laughable.

But set that aside for the moment. One might think that retributivists like Volokh would be up in arms over this paper. Sunstein concludes by arguing that deontological moral intuitions are caused by the irrational application of moral heuristics to complicated moral problems. And for that reason, such intuitions are not reliable. Since retributivists like Volokh ignore the value of statistical lives, they, too, can be dismissed as delusional.

Volokh is happy with the results of Sunstein and Vermeule’s, but he shouldn’t be. He should be worried (or outraged), as should those who reject the death penalty on deontological grounds, about the underlying argument, namely, that anyone who isn’t a consequentialist is either stupid or crazy.

remember my whole thing about how confusing original sense and original application led conservatives to wrongly argue that both were binding and liberals to wrongly argue that neither is?

I would say the same thing is going on with confusing justified retribution & vengeance.

And, actually, with confusing euthanasia & assisted suicide with the right to refuse medical treatment.

If you read the referenced Berk & Goertzel papers it becomes obvious that this is a classic case of someone torturing the data until it confesses to a crime it did not commit.

I will not accept any paper or study on the deterent impact of the death penalty that does not explain why Texas has such a high murder rate and excution rate. If you believe the death penalty had a detertent impact you have to explain why it does not work in Texas.

Do you believe that everywhere in the world has the same murder rate if you factor out the detterent effect of capital punishment? Everywhere in the US?

No, but you’d think that if the death sentence were all that effective a deterrent, Texas would have a much lower murder rate than New York, since it has the death machine cranked up to 11. Instead, New York pegged a 5.0, and Texas, 5.9.

An argument that boils down to, effectively, “imagine how much worse my cancer would be if I weren’t taking all this Laetrile,” is a pretty weak one.

cathrine,

“you can’t commit the same act you’re supposedly condemning. You don’t condemn torture by torturing, rape by raping, or killing the innocent by killing the innocent.”

Wouldn’t that rule out punishment altogether? The reason and actor are as important as the nature of action. If not, what separates fines and taxes from theft, imprisonment from kidnapping, etc.

On a somewhat related point, I wonder if the death penality itself is even the main source of violence in the law-enforcement process. I’d guess that the probability of being shot by the police in the process of committing a crime seems much higher than the probability of being formally executed by the state – see here to get a quick look at the relative numbers.

“No, but you’d think that if the death sentence were all that effective a deterrent, Texas would have a much lower murder rate than New York, since it has the death machine cranked up to 11. Instead, New York pegged a 5.0, and Texas, 5.9.”

Isn’t that why you compare murder rates over time? And isn’t there a period where the Supreme Court outlawed the death penalty to help out as a pseudo-control?

““you can’t commit the same act you’re supposedly condemning. You don’t condemn torture by torturing, rape by raping, or killing the innocent by killing the innocent.”

Wouldn’t that rule out punishment altogether? The reason and actor are as important as the nature of action. If not, what separates fines and taxes from theft, imprisonment from kidnapping, etc.”

The reason and actor and legal sanction matter, but torture and torture and rape is rape. You can’t torture or rape to incapacitate or in self-defense or to pay for shared social services. It’s pain for the sake of pain.

Do you have a link to excutuion data?

Unfortunately, no. I know a few data points — 119 executions in Texas during the Bush regime, none during the Furman period of 1972-76, but not much more.

To be honest, I didn’t look too hard. I don’t have the sociological chops to answer questions about things like lag between cause and effect, so I didn’t think I’d be able to make use of it to add more light than heat.