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12/18/2005

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Dave Morrell

An interesting attempt to counter the moral argument -- stating that more innocent victims will die without the death penalty -- but those like me with moral objections to the death penalty will never be convinced by some sort of "life-efficiency" argument. I am weary enough of the state abridging my freedom and will never agree to granting the state the right to take human life.

If Becker's analysis was carried out, consider the implications for health care. If the state has the right to take lives, should it cause the chronically disabled to be denied life sustaining treatment, even feeding? Couldn't the money used to provide that care be used to improve the lives of those who might actually be in a position to contribute to society?

Economists can easily place dollar values on human lives, but are we really so anxious to allow the government to decide who is deserving (or undeserving) of life in such a naked and direct way?

David Tomlin

Suppose it could be demonstrated that deterrence would be further multiplied by public crucifixion? Does that become morally imperative, or is there a point at which we may recoil from barbarism simply on the grounds that it is barbaric?

Have there been any studies on the deterrent effect of amputation in countries that practice it?

It's interesting that supporters of the death penalty usually oppose televising executions. Common sense suggests that this would increase deterrence substantially. If the death penalty is a moral imperative, wouldn't it also be imperative to at least experiment with televised executions?

logicnazi

I would seriously consider being in favor of capital punishment if I thought it did save lives. Unfortunatly I cannot find Posner's post or links to the studies at the moment (I tried a search and this was the only post to come up...maybe it isn't posted yet).

In any case I have a great deal of difficulty believing that the efficacy of capital punishment as a deterant can ever be seperated from the general effect of pro-law and order attitudes. Those states that support capital punishment likely have a much more retributive and less friendly attitude toward criminals in general and the same can be said about different times capital punishment is applied or not applied (e.g. the period the supreme court banned it). Additionally it seems quite difficult to quantify the number of additional deaths that might be caused by criminals who think they are likely to get the death penalty and have little reason to give themselves up.

Moreover, while I suspect the death penalty may have made for good deterence when it was applied much more broadly in the past the extremely few people (and seemingly at random) way it is applied in the present intuitively seems quite unlikely to deter.

Still I think a reasonable argument could be made for deterance *if* the death penalty was applied in a more procedural manner, not because of jury disgust or judgement of heniousness. For instance if any murder committed to avoid capture (killing a witness firing back at the police) made one eligable for the death penalty. Or murders committed inside a penal facility.

However, these uses of the death penalty in a way which would intuitively make for good deterence, i.e., in a way which lets the criminal predict beforehand that some act will get him death, bring up big questions of fairness. Someone who kills in prison to avoid gang rape is a lot different than a racially motivated murder.

One reason I do find myself somewhat sympathetic with keeping the death penalty is the somewhat counterintuitive fact that death penalty cases draw greater scrutiny to the fairness of the legal system. If you get a life sentence your options for continued judicial review (say if you had incompetent counsel or racially motivated strikes of jury members) are quite limited while death sentences get a great deal of judicial attention. In fact I believe there was a case not too long ago where after a guilty verdict the convict asked for a death sentence as he felt this gave him a greater chance for a reversal.

Unfortunatly there still are serious problems of fairness in our legal system. Public defenders are simply not given the resources to do their own investigations, consult jury experts or hire attorneys of similar caliber to the prosecution. Death penalty cases continue to draw attention to these unfair practicies while people seem to just shrug their shoulders at life sentences.

Justin

First, I very much agree that the issue depends on the testable assertion that the death penalty is a deterrent. However, could the authors perhaps provide more detailed references to the supposed wealth of evidence showing that the death penalty is a deterrent? I am aware of the one recent paper discussed (suggesting the 18 number) but I am aware of no similar evidence. At the same time, many other statistical studies have shown no effect, or actually an INCREASE in the number of murders. (http://www.deathpenaltyinfo.org/article.php?scid=12&did=167) 'Expert advice' from criminal or psychological 'experts' similarly does not favor it being a deterrent, but I place far more trust in empirical studies. Likewise, I believe common sense in no way suggests that death penalty is a deterrent: I very much doubt that murderers commit their crimes expecting to be caught at all.


If more compelling evidence is presented, I am absolutely willing to support the death penalty, but on this issue Becker and Posner seem to have given a very limited and selective view of the available research.

Grumpy Old Man

There is considerable interest in examining this issue in purely economic terms, but it is not an exclusively economic issue.

Unlike Becker, I believe that retribution is a legitimate justification for punishment. When the state took over prosecution from the victim's family, the need for retribution was not abolished, just transferred to the state. Capital punishment is necessary not only because justice must be done, but because it must be seen to be done.

If the populace does not see justice done, they will, ultimately, attempt it themselves.

J.Peron

If I understand the argument that is usually made the idea is that executing people guilty of murder deters other murders and the number of lives saved by the deterrance outweighs the problems of possibly executing an innocent person. But wouldn't this then also justify government knowingly executing innocent people provided the public is kept in the dark that the dead were innocent?

As long as the public is unaware the people were innocent then the deterrance effect should still kick in. And if each executiion saves more innocent lives than it takes then wouldn't there be an "economic" argument justifying this practice?

W

BECKER: To show why, suppose that for each murderer executed (instead of say receiving life imprisonment), the number of murders is reduced by three- which is a much lower number than Ehrlich's estimate of the deterrent effect. This implies that for each murderer not given capital punishment, three generally innocent victims would die. This argument means that the government would indirectly be "taking" many lives if it did not use capital punishment. The lives so taken are usually much more worthwhile than that of the murderers who would be spared execution. For this reason, the State has a "moral" obligation to use capital punishment if such punishment significantly reduces the number of murders and saves lives of innocent victims.

Professor Becker most certainly deserves his Nobel, as he manages to be more provocative than Posner in his knavishly Hegelian support of the death penalty. But I think Becker is wrong here, for here he translates that the State must either intervene or not intervene into the proposition that the State must kill or kill. This is fallacious. By intervening, the State is killing a murderer. (This may or may nor be justifiable, and I leave that aside.) But it is not killing to decline to to kill murderer. It is true that said murderer may kill others. But that murderer is responsible for those murders, not the State for failing to have intervened and prevented the murders from taking place. If the State had a duty to intervene to deter by killing a murderer within its custody (i.e., kill every murderer in its grasp so as to maintain the prevailing rate of deterence), then the State would likewise have the duty to intervene to deter that same murderer when he was outside of the custody of the State. In a world of limited resources, bounded rationality, and informational asymmetries, it is a cost prohibitive burden on the State to investigate potential murders before they occur and morally suspect to assassinate murderers before they have attempted to carry out their plot. Because the burden is too great on the State (the duty is too burdensome), the right correlative to the duty must be too expansive; citizens simply do not have a right to bodily integrity that mandates random assassination of potential miscreants by the State.

But let's say you can narrow and distinguish the State's obligation to intervene to deter when a murder is in custody as opposed to outside of State custody on the basis of knowledge of guilt. Even if that is the case, there is a moral distinction between purposely ramming a car into someone's legs and waking up in the driver's seat of a car that is speeding for a motionless victim's legs and failing to stomp on the brakes swiftly enough. In the former example, you are the moral agent that lit the fuse, in the latter, you simply caught the dynamite by reflex because you were standing next to the Prime Minister. In the latter example, you are not morally responsible for the events that follow, although you are a link in the causal chain. Apply this framework to the State in its administration of executions, and it becomes apparent that the State, having a murderer in its custody, is simply the guy in the room who caught the dynamite or the guy who woke up in the speeding automobile. One can note that the State is a link in the causal chain; that doesn't mean the state is morally responsible for deaths caused by murderers who are not in the State's custody and who commit murders while other murderers within the State's custody are serving life sentences.

One could make such an argument about clemency, however, and note that a governor who purposely reduces the deterent effect of the death penalty by letting murderers out is morally equivalent to a legislator who passes an abortion law because she desires that more fetuses be killed.

But let's also address another Becker point: that some lives are more worthwhile than others. What calculus or formula is Becker using to determine the comparative valuation of lives? Actuarial tables? Insurance policies? Given two persons who are equal in all respects save two, their capacity to write great literature and their propensity for criminality, is a criminal who pens Great Literature of less worth than an innocent hack who cannot write a word unless it consists of utter trash?

Chris

I think it is a bit of a leap to say so cavalierly that it is simply wrong to oppose the ability of governments to take lives if it can be shown that the deterrent effect saves net lives. This logic, when applied, is too much. There are starving people in Africa. If it could be proven that by killing a million Africans we would save 10 million Africans, would that make it a moral imperative for the U.S. to start the "process"? What if an economist could prove that if we thinned the American population by 25 million, we would eventually have a major net gain in lives saved (say, by preventing accidents, reducing pollution, etcetera)? Would that mean the government should start the lottery to see who gets to make such a noble sacrifice? What if it could be proved that for every smoker killed, 1.2 lives are saved? Should the government contact Philip Morris for their customer list ASAP? Or what if we could show that for every abortion performed, 1.1 lives were saved? Is the argument over abortion ended (and should the government then start figuring out who gets the first forced abortion)? Or maybe we can eradicate mental illness by forcibly sterilizing all of the mentally ill? Do we have a moral imperative to allow it? How about forced sterilization of sexual offenders? Given the rampant recidivism of sexual offenders, is the moral case closed on that one? If lives would be saved by enacting super-stringent pollution regulations, is anyone that opposes the regulations immoral (or amoral)?

The question is whether the government has the moral right to kill, not whether the government has the moral imperative to produce the highest net gain of life.

W

The question is whether the government has the moral right to kill, not whether the government has the moral imperative to produce the highest net gain of life.

But the government is not killing when it fails to intervene -- that is how Becker has anticipated, and avoided, your particular critique of the anti-utilitarian variety (though I think you can successfully reformulate it).

Arun Khanna

Capital punishment deters criminals is shown by the behavior of numerous criminals who do not get involved in violent crimes that have a high probability of killing someone. With the advances in DNA testing, standards of evidence needed for convicting someone for murder have gone up a lot. Given these two facts, I support capital punishment on a case by case basis.

W

In other words, if it is immoral not to intervene, then it is moral to intervene. You cannot say that it is moral not to intervene, because it is not moral to let murders happen -- the best you can say is you aren't responsible for the murders. But Becker can say that the state's duty is to protect the lives of its citizens, as even the most minimalist theories of State posit it as a Nightwatchman that protects, so it must be responsible. One could reply that the State is responsible only when it explicitly extends itself to protect you, i.e., it promises you explicitly that it will keep you safe, e.g., puts you in a witness protection program. But now you have a State that is so minimal, you might as well consider yourself an anarchist, because military protection is a public good (a social compact is needed to pay for it, positive externalities for all citizens), and you have opposed a State that consists of nothing more than demonstrable public goods. That isn't the free market; that is Hobbes' State of Nature. I can't but think that Becker has sculpted his argument precisely to fend off the anti-utilitarianism argument that you just made, Chris.

Richard Mason

As another commenter mentioned, the crimes which most easily justify the death penalty are murders committed in prison or in the course of resisting arrest. Common sense suggests that extra prison sentences would not be a meaningful deterrent in these cases.

Also, it seems to me that through pervasive video monitoring of prisons and arrests, virtually all such crimes could be captured on tape, reducing the chance of false conviction (or false acquittal) to nearly zero.

Kendall

I agree with many of the posters above that the evidence for the death penalty's deterrent effect is weak, and there are lots of omitted variables, such as prison conditions, that can make one skeptical of the purported deterrent effect.

To me, the more logical value of the death penalty is illustrated by the following situation: the prosecutor has strong circumstantial evidence that a specific person comitted a capital crime, but not enough to eliminate a jury's reasonable doubt. Both the prosecutor and the criminal know that with the expenditure of additional detective resources, additional evidence sufficient for conviction could likely be found. Then the prosecutor offers to take the death penalty off the table in return for a confession from the criminal. This saves significant police and judge resources that can be redirected to solving or deterring other crimes. Of course, for the prosecutor's offer to be believable, the state must actually apply the death penalty occasionally to the worst offenders.

Note that this theory of how the death penalty reduces crime doesn't depend on murderers' rationality at the time of their offense -- only their rationality (and maybe just that of their attorneys) at the time of the plea bargain.

As to the moral status of the death penalty under this theory, I cannot speak directly to that.

Jorge Pinillos

I just have three points:
1. Wouldnt the increase in the rate of property crimes in Europe in the recent years be directly proportional to the increase in the number of immigrants (legal or illegal) arriving every year to Europe from Africa and Latin America?
2. What determines that the life of a potential victim is "better" as you state than the life a murderer? Aren¥t all of us potential murderers given the adequate environment?
3. I agree that death penalty is a very serious deterrant but it doesn¥t work by itself. It requires a very serious education and re-education programme to be offered to inmates in order to prevent their participation in violent crimes after they are released. It is just obvious criminals in death row or life imprisonment are not subject to this type of programmes. In my country, Colombia, there is no death penalty and we have one of the top five violent crime rates in the world. Hopefully our legislators will one day soon realize the benefits of implementing the death penalty.

Martin

Becker talks about the trade-off between saving (possibly) lives by deterrence and taking away one life per execution. Even if one agrees with the trade-off his recommendation does not follow. Some people may believe that taking a life is absolutely wrong. The lives you don't "save" by non-deterring potential murderers are not lives you take. Becker's argument denies the potential future murderers the role of moral agents. You might not execute and they might not kill. Of course Becker's argument is that these future events can be expected. The question is whether mere reasonable expectation is good enough when the expectation is about other moral agents who are IN PRINCIPLE like YOU. I would be more inclined to let myself convince by Becker's position if it relied on expectation about natural phenomena that lead to loss of lives, not man-made acts.

I think this might be a reason why major religions speak against execution, even when in other circumstances they would be willing to sacrifice (even an innocent life) for several others.

Dude

I didn't read all the comments; forgive me if this has already been said. If deterrence is the most important reason for the death penalty, then wouldn't it make sense to publically and brutally kill someone to truly horrify and frighten future criminals? Bring back public hangings in the town square! If a quiet, solemn death deters 3 murders, publically tearing a murderers limbs apart might deter 10 or 20 murders. You can weigh your moral squimishness against the potential to save so many more lives. Won't someone please think of the children?!? ;-)

I'm opposed to the death penalty. "Thou shall not kill" is pretty clear. The logical conclusion of Becker's deterrence argument is that we should increase the deterrence effect to further reduce crime. I'm sure it worked for Saddam's Iraq.

Wes

"...the more logical value of the death penalty is illustrated by the following situation: ... the prosecutor offers to take the death penalty off the table in return for a confession from the criminal.Just because it's in the U.S. Constitution doesn't mean it's a good idea but...Amendment VNo person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.These days, "compelled" seems to be interpreted to mean that punishment can be reduced but not increased to compel self-incrimination but, in my view, that's a rather fine distinction.

Corey

I would like to repeat a point made above.

If one lethal injection murder would "deter" a
murder on the street, then one beheading would deter 10. Perhaps we should tear the limbs off murderers on the rack and send them on a tour of inner-city schools so that the message of deterrance will be more efficiently spread.

There is just one problem, lots of research shows that it isn't the severity of the punishment that deters but the certainty of punishment. We could abolish the death penalty, spend all the money saved from mandatory death appeals on investigations, and achieve a higher conviction rate that would be a better deterrant.

But I submit that Posner and Becker and most of you all wouldn't like that. We all know it isn't really deterrance that justifies the death penalty, but rather vengeance. People like capital punishment because they want to punish murderers. Deterrance sounds like self-defense so everyone recites it in polite company, but sometime you should all go to a prison and stand outside while someone is being executed. Read the signs that people are holding up. They don't say "kill him to set an example", they say, "Burn in hell!" and "Stanley deserves to die!"

David Hopkins

If the death penalty were not a deterrent than I do not think we would see defense attorneys attempting to plea bargain for life without parole over the death penalty. Their clients clearly prefer life over death - even when that means the horrible existence of lifelong incarceration.

Neerav Kingsland

Many of the criticisms of Becker's response stem from the fact that Becker is making two arguments and only supporting one of them.

Becker states that capital punishment is justified when the deterrent effect results in the net saving of lives.

But in making this argument, Becker assumes that the State should be able to kill convicted murderers. After making this assumption, he then goes onto detail when the state should exercise this power. However, Becker never proposes a moral or economic rational to support his assumption that the State should be able to kill convicted murderers.

As many people have noted, there are many scenarios in which the state's killing of citizens could result in the net saving of lives. However, few people are willing to assert that the State should kill citizens in any situation where the killing will result in the net saving of lives.

Thus, in any situation where the State's killing of lives will result in the net saving of lives, we must examine whether the State should have the authority to kill citizens in this situation. Becker does not undertake such an examination.

Personally, I do not believe that the State should kill convicted murderers. On utilitarian grounds, I beleive that it is possible for a society to place a higher value of life than our current society, which will eventually result in fewer killings. I think that the death penalty, in the long term, retards this development. My reasons for believing this are complicated, and I won't go into them here.

But my main point is only this: the effect of deterence is useful in considering whether the death penalty will result in the net saving of lives, but it does not necessarily answer the greater question of when it is that the populace should allow the State to kill citizens.

cheers,

Neerav

Matt


I have a question:

Has there been any studies done on the effect of capital punishment to deter by race or socioeconomic status?

Let's say that Poor Purple People tend to commit more murders than all other people. So they become executed more often. Is that deterrence effective? As more Poor Purple People die, are they deterred at an increasing or decreasing rate? What does that curve look like for those demographics that are (for whatever reason, be it poverty, geography, or some other variable) most likely to kill and thus be killed?

Also, I think that anyone posting about killing the children or the disabled to increase utility is missing the point entirely: deterrence by punishment. That's what we're talking about here. If you're a poor starving child or disabled, why would we kill you or purposefully allocate resources? You haven't done anything _wrong_ and thus the counter-arguments proposed fall out of the realm of what Posner and Becker are talking about. We are not trying to change a behavior.

Konczal

I would love for either of you two to point out a specific study you recommend on this issue.

:To show why, suppose that for each murderer executed (instead of say receiving life imprisonment), the number of murders is reduced by three

Perhaps there are specific studies that say otherwise, but all I see is data pointing to a "the state executed X people and Y less people were murdered" result. It is illogical, unfair, and bad math to say "If the state executed X+1 people, Y + Y/X less people would be murdered."

The quotient here doesn't relate to a utility of each individual execution (executing Adam saved Dick Jane and John's lives) but instead the criminal justice apparatus of which the threat of death is an element (our state has a tough criminal justice system which includes copious amounts of the death penalty and that saved Dick Jane and John's lives).

This isn't an argument about the death penalty but about the utilitarian moral scenario Becker proposes where a bad man should die to save three good men. It breaks down without further evidence that the act of executing a person saves lives in and of itself. Instead people should face the idea of the institution itself, and consider that ethical question.

luke

> I support the use of capital punishment for
> persons convicted of murder because, and only
> because, I believe it deters murders.

Now this is absolutely naive. Criminals never ever think of possible punishment, but are convinced of not getting caught. Thus, the belief that capital punishment deters murders is just that: dumb and naive.

On the other hand, it is also led by a strange understanding of other people. What do you think about humans -- that they are only deterred from murdering others by the threat of a possible death penalty? If this point of view wasn't so wretched barbarian, one should at best make a laugh at it.

If capital punisment is such a strong deterrence to murders as you say, I wonder why the US have by far more murders per inhabitant than Europe has. Mind you, Europe gave up on capital punishment dozens of years ago, and murder rates have not significantly changed ever since.

AC

Both Posner and Becker support capital punishment because of its deterrent effect on murder, yet fail to consider whether there might be more cost-effective ways to deter murder, such as improving educational and job opportunities. Lack of economic opportunity is certainly a big factor in gang membership. Does anyone know of any econometric studies linking education and income with liklihood to commit a murder?

Matt S.

In response to a previous comment:

If criminals "never ever think of possible punishment," why do most murderers attempt to cover their acts up?

>That they are only deterred from murdering others by the threat of a possible death >penalty?"

Becker argues that if we have the death penalty, then it deters murders. Your statement says murder is only deterred by the death penalty, i.e., if you are deterred from murdering, it must have been because of the death penalty. This conclusion is flawed because you mistake sufficient condition for a necessary condition and this is a "mistaken reversal" argument structure.

Europe and the US are fundamentally different in many respects. You present a false analogy. Europe has less violence in general. If you were making the argument that the death penalty serves as an example to show why murder is okay, I'd say that is an interesting point. But your last paragraph doesn't even contain a point; it has no conclusion. Just an implication in tone.

I don't frequently post, but I read posts often. Please limit your name-calling in a space that is, in my opinion, very useful and fosters critical thought. In that vein, I'm not trying to be mean here: just critical.

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