More on the Economics of Capital Punishment-BECKER
Posner has a good discussion of the various issue related to capital punishment. I will concentrate my comments on deterrence, which is really the crucial issue in the acrimonious debate over capital punishment. I support the use of capital punishment for persons convicted of murder because, and only because, I believe it deters murders. If I did not believe that, I would be opposed because revenge and the other possible motives that are mentioned and discussed by Posner, should not be a basis for public policy.
As Posner indicates, serious empirical research on capital punishment began with Isaac Ehrlich's pioneering paper. Subsequent studies have sometimes found much weaker effects than he found, while others, including a recent one cited by Posner, found a much larger effect than even that found by Ehrlich. The available data are quite limited, however, so one should not base any conclusions solely on the econometric evidence, although I believe that the preponderance of evidence does indicate that capital punishment deters.
Of course, public policy on punishments cannot wait until the evidence is perfect. Even with the limited quantitative evidence available, there are good reasons to believe that capital punishment deters murders. Most people, and murderers in particular, fear death, especially when it follows swiftly and with considerable certainty following the commission of a murder. As Posner indicates, the deterrent effect of capital punishment would be greater if the delays in its implementation were much shortened, and if this punishment was more certain to be used in the appropriate cases. But I agree with Posner that capital punishment has an important deterrent effect even with the way the present system actually operates.
Opponents of capital punishment frequently proclaim that the State has no moral right to take the life of anyone, even a most reprehensible murderer. Yet that is absolutely the wrong conclusion for anyone who believes that capital punishment deters. 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.
Saving three other lives for every person executed seems like a very attractive trade-off. Even two lives saved per execution seem like a persuasive benefit-cost ratio for capital punishment. But let us go further and suppose only one life was saved for each murderer executed. Wouldn‚Äôt the trade-off still be desirable if the life saved is much better than the life taken, which would usually be the case? As the deterrent effect of capital punishment is made smaller, at some point even I would shift to the anti-capital punishment camp. But given the difference between victims and murderers, the deterrent effect would have to be considerable less than one person saved per murderer executed before I would shift positions, although account should also be taken of the considerable expense involved in using capital punishment.
Of course, one wants to be sure that the number of persons wrongly executed for murder is a very small fraction of the total number executed. Posner argues convincingly that the safeguards built into the American system are considerable. They do not prevent any innocent persons from being executed, but they certainly make the risk very low. Capital punishment cannot be used if the goal is never to erroneously execute anyone, but then its deterrent effect is lost completely.
European governments are adamantly opposed to capital punishment, and some Europeans consider the American use of this punishment to be barbaric. But Europeans have generally been "soft" on most crimes during the past half-century. For a long time they could be smug because their crime rates were well below American rates. But during the past twenty years European crime has increased sharply while American rates have fallen-in part because American apprehension and conviction rates have increased considerably. Now some European countries have higher per capita property crime rates than the United States does, although violent crimes are still considerably more common in the United States. At the same time that America was reducing crime greatly in part by greater use of punishments, many European intellectuals continued to argue that not just capital punishments, but punishments in general, do not deter.
To repeat, the capital punishment debate comes down in essentials to a debate over deterrence. I can understand that some people are skeptical about the evidence, although I believe they are wrong both on the evidence and on the common sense of the issue. It is very unpleasant to take someone's life, even a murderer's life, but sometimes highly unpleasant actions are necessary to deter even worse behavior that takes the lives of innocent victims.