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One issue that comes to mind is that of the "utility distribution of murderers". What I mean by this is the fact that not all murderers are getting caught, but those who are, are punished. If capital punishment is introduced, then this in-equality in utilities between caught and not-caught murderers rises. This is especially so, if the introduction of capital punishment is complemented with decreasing probability of being caught (to hold constant the expected punishment), as fewer murderers were faced with increased punishment. The fact that in-equality rises holds true for every rise in punishment and/or fall in probability of getting caught.

If public has preference for equality in general -as at least in Europe it seem to have-, then capital punishment clearly decreases social utility in this respect and should be taken into account when determining the total utility gain/loss of capital punishment. To assess the scale of the problem, it would be beneficial to know what proportion of murderers are not getting caught and go unpunished.


I frankly do not see how any reasonable and relevant philosophy could oppose the use of capital punishment under the assumptions of this example

I think that's rather myopic. You're taking as a given a utilitarian philosphy (like Mills, Bentham), but there's certainly other reasonable, relevant philosophies that would disagree with this.

You ought to consider Locke, in particular, for his natural law philosophy. I emphasize this one, because it seems to me that much of the protections in the Constitution's Amendments 4, 5, and 6 reflect this very philosophy.

According to our Constitution, we can't convict someone based on a forced confession, e.g., even though it might clearly save lives to put away this serial killer now.

Owen Thompson

Although it was not the focus of the post, i have a comment on the question of whether the deterent effect exists, which is the premise of the rest of the argument.

I think that there is a general overestimation of the rationality of potential murderers. Killers are not usually engaging in some sort of cost-benefit analysis which the threat of execution could somehow sway in the direction of not killing. Murder is clearly an irrational act for anyone who believes that they may be caught and values their life at all, and this is true with or without capital punishment.

This, combined with the existence of an overwhelming number of confounding variables, severely compromises the validity of any study on capital punishment's deterent effects. And if there is not conclusive evidence of deterence then i think it is clear that executions should not proceed. The default position in the face of inconclusive evidence should not be to kill more people.


That's very true. I think there's a need to study the issue more closely.

Skeptical Humanist

Though Professor Becker's argument stands if capital punishment has any sizable partial/marginal deterrent effect, one must also consider whether any other option is open. I would say, it is hypocritical indeed to oppose capital punishment if it saves lives (yes, even if only more valuable ones) that cannot be saved in any other way. My point is that this institution is not a first-best solution for the problem for sure, and in our culture we should agree that it is very close to being "last-best". Two related points:
I doubt whether after controlling for many other possible deterrent factors or disincentives, there is a well-identifiable marginal/partial effect left, and even less if we also try to consider related social programs and institutions like gun-control and education.And even if we find evidence that there have been some "net gains in lives" (in quantity or quality) from killing murderers (a positive result), I would not rush to the conclusion that the same effect cannot be achieved in any other way, therefore its implementation is recommended (a normative result).Let me note a similar point in another highly-debated issue: however gainful Levitt and Donohue find abortion in the past, whether or not to prescribe the policy still depends on whether the problems of unwanted babies and single mothers could be solved in more acceptable and/or more gainful ways. (Which were not in the data therefore not controlled for while measuring the partial effect of abortion.)People and politicians should always compare viable options and choose, that is what economics tells us. So economists should also look for data whether people find capital punishment, a stronger police force, a more cohesive society, or, say, some intrusion into their private lives (like their "inalienable right" to carry a gun) etc. more worthwhile -- comparing marginal benefits and marginal costs.

Ignacio J. Couce

Only in passing is the issue of wrongly convicted death row inmates addressed. The inference is there is some proportion of the two Mr. Becker would find acceptable. In the abstract, it seems perfectly reasonable; however, what is the proportion that would cause Mr. Becker no loss of sleep, and what of the poor devil who while insisting on his innocence is on the cusp of the equation? Do we keep a tally and then execute with impunity based on this proportional threshold? Further, are you suggesting Governors Ryan and Glendening were wrong to declare moratoriums on the death penalty in their respective states? My heart does not bleed for convicts, however, when we allow the state to murder then we provide the conditions under which corruption can cause an innocent man his life. I think the government should be in the business of eliminating opportunities for corruption not providing them. In my opinion, the deterrent aspect of the pro-death-penalty argument is a red-herring; the real question is, as a matter of policy, does the government have any business putting any one to death for any reason. I wonder how history might have played out differently if the German people, however heinous the individual was perceived to be, would have had an underlining cultural aversion to having the government execute its citizens in say, 1933-45.

Eric Rasmusen

"This argument helps explain why capital punishment should only be used for some murders, and not for theft, robbery, and other lesser crimes. For then the trade off is between taking lives and reducing property theft, and the case in favor of milder punishments is strong."

Not really. Suppose we imposed the death penalty for embezzlement of sums over $10,000. That might well deter enough embezzlement to compensate for the loss of a few lives from those who did embezzle and were caught. Or consider the creation of computer viruses. These can have far higher costs than the two million dollars or so at which human life is conventionally valued for cost-benefit purposes.

A philosophical issue that arises is why we care about the lives of murderers-- should they enter the social utility function?


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