Posner: "The proper inference is that murderers of blacks are underpunished."

The inference sidesteps an important distinction: blacks who kill whites are four or five times more likely to get the death penalty than whites who kill blacks. See, e.g., David C. Baldus, George Woodworth, David Zuckerman, Neil Alan Weiner & Barbara Broffitt, Racial Discrimination and the Death Penalty in the Post-Furman Era: An Empirical and Legal Overview, with Recent Findings from Philadelphia, 83 Cornell L. Rev. 1638 (1998).

So say ye economists? Where's the math on deterrence? Comparing murder statistics in states w/ the death penalty versus those without? Adjusting for what, economic stratification, blah blah?

I say, no abortions so we can kill 'em all later as adults!

"I do not consider revenge an impermissible ground for capital punishment. Revenge has very deep roots in the human psyche."

I find this to be an troublesome argument. The state does not allow citizens to kill for revenge. Why should the state have that power?

"Ohwilleke's comment claims that the "error rate" in capital punishment is 10 percent. This is incorrect. Not a single person among the 119 that he contends were erroneously sentenced to death was executed. That is a zero error rate."

It would appear that we don't know how many innocent people have been executed but it is logical to assume that some have. The problems in the cases where DNA cleared innocent people are not only present in those cases.

As courts and prosecutors are reluctant to revisit cases after an individual has been executed it is likely that we will never have a number.

Is that an argument to continue on with the same flawed system that we have? I don't think so. Not if our system is anything more than an assembly line to send people to death.

It's clear to legal practitioners, and more and more lay people, that there are enough flaws both human and technical that our justice system is has become seriously compromised and is perhaps, on its way to becoming a disgrace rather than a shining jewel of the world that we hold it out to be.

I think the authors have forgotten a point: When it comes to crime deterrence, the anticipation of an effective response from the legal system - even if it's not a capital punishment - may be more important than the severity of the response itself. So the states should be more interested in increasing the quality of its legal systems (police, investigations, judiciary, etc).

Posner's comment on revenge makes relatively little intrinsic sense based on his utility calculation. How can one be sure that the marginal utility of revenge exceeds the disutility of execution? This is based on theories of evolutionary biology--correct? In that case, how can it suddenly be assumed that the disutility of public executions exceeds the positive utilities? Cannot an equally plausible "biological" argument be made that revenge is as much a group as an individual phenomenon? Further, how is the "biological hardwiring" any substantive measure of utility? Ask any evolutionary biologist and they will tell you that murder (not in self-defense), the killing of children unrelated to one's own, etc. all reflect our past evolutionary determinism--can a reliable utility framework therefore be created to analyze when such actions are acceptable? It seems that Posner draws the difference simply based on his own innate preferences---thus highlighting (as he once did in the Economics of Justice) the inherent difficulties of using utility as a measure of welfare.

"The purpose of punishing these people is not to deter them--by committing the crime in the face of threatened punishment they have shown themselves to be undeterrable--but to deter people who, were it not for the expected punishment cost, would commit the crime because its other costs were lower than its expected benefit." -- Posner

Posner, were do social scientists get people to admit that they woulda committed homicide but for capital punishment's deterrent effect?

Do social scientists survey shoppers in malls around the holidays?

Or is there a web site that one can visit and click a box next to the statement "capital punishment's deterrent effect stopped me from committing homicide (at least for today)".

Anyway, I like your revenge argument in support of capital punishment better than the commonplace deterrence argument.

My pet electronic goblin ate the "h" in "where", leaving "were" in its place. My earlier post should say "where do...deterrent effect?".

Where would we find the best available numbers for how many innocent people get sentenced to death? It seems to me that the best we can do is to look at a large set of death row cases in which the conviction happened before DNA evidence was being used, there's still DNA evidence available now, and the DNA evidence could be used to determine whether the crime happened or not. With that, we could use DNA evidence as a kind of oracle to determine the approximate accuracy of being convicted of murder. Has anyone done this? I've never seen reference to it, but it seems obvious that this kind of study would be really useful in working out how likely a person on death row is to be innocent.

The apparently large number of death-row cases overturned on DNA evidence makes me worry that a lot of innocent people are on death row. Since many of those people had gone through endless appeals, I'm not convinced that appeals do much to determine whether you're actually the guy who pulled the trigger. But to get good information about the system's accuracy from DNA tests, you have to look at the portion of cases where DNA could have been used to undermine the conviction, and then you have to see how many of those were
undermined.

Has anyone done this?

It seems not. David Friedman has been complaining for some time that he hasn't been able to interest anyone in such research.

http://daviddfriedman.blogspot.com/

Posner, were do social scientists get people to admit that they woulda committed homicide but for capital punishment's deterrent effect?

Do social scientists survey shoppers in malls around the holidays?

Well, I don't think asking people is normally the approach in this type of research. But I have seen surveys of imprisoned felons.

I find it difficult to understand how opponents of the death penalty can argue there is no deterrent effect.

As has been pointed out in these discussions, another major benefit of the death penalty is that the threat of use causes accused murderers to plead guilty in exchange for a life sentence.

This would seem to me to be fairly clear evidence that these criminals fear the death penalty more than imprisonment. Enough so that they are willing to forfeit a presumably non-trivial chance of acquittal (I would thing that generally the less chance of acquittal the less willing prosecutors are to plea bargain), in order to avoid the potential of the death sentence.

This seems to indicate that the target audience for deterrance (murderers and potential murderers) are receptive to the threat and change their behavior accordingly.

PS. Thanks to Profs. Becker and Posner for their thought provoking blog. I just discovered it.

A totalistic approach to the “deterrence” of murder is probably impossible. Is it a legal issue that permits definition to resolve it? Or, is it an economic issue that admits the weighing of the outcomes of various “remedies?” Or, is it more an emotional one where “revenge” is sweetest? Or, is it a spiritual one that asks us to transcend our own understanding? It is all of these and none.

We can use definition to parse the offense and its remediation to a degree. We can weigh the outcomes of various approaches to various policies and their effects. Likewise, we can appeal to the nature of our hearts and let personal feelings and religious convictions determine policy without regard to effects. Or, we can reach beyond ourselves to a wider, wiser understanding.

This is not a simple issue. There are no panaceas. Might I suggest a strategic approach to a more satisfactory resolution of this “policy issue?” It is primarily a policy issue because there is no underlying Newtonian-style “science” upon which we can agree about it. There will be no leaps of utopian acquiescence or eureka realization or in its resolution.

There really is no Unified Field Theory on this one. What we have here is a policy issue that requires the professional approach of seeing greater truths than we can find in the universe of our personal viewpoints. Policy and “Truth” often intersect, but pragmatic effective policy and truth are often not the same. Policy is, in part, the product of agreement—not discovery. That said, it is most important to use the methods of policy formation to find a common ground of agreement. The chief method is that of finding common ground.

If deterrence is a worthy component of a good prospective policy on murder and how it should be handled, we need to ask ourselves about the limits of “deterrence” in light of what we can all agree upon. I believe that we can all agree that as long as serial killers (like Bundy and Gacy) live, there will always be some chance that they will murder again. They are likely to either do so in prison or, in the event of their release. (Life imprisonment without the chance of parole is not always life imprisonment without the chance of parole.) I think that most of us agree that we would not want to take the chance of allowing the Jeffery Daumers of the world to kill again. The only sure prevention is their irreversible suppression—namely death.

This is the starting point in steering this policy discussion towards a decision that we can all (most of us anyway) agree on. If it is given that there are some murderers that are “so bad” that they must be “put down,” than we need to decide how we are to decide who those people are.

Posted By: Bill Churchill

Revenge may be a crappy and detrimental emotion for the person seeking revenge.

One reason "The Purpose Drive Life" may sell so many copies is because the author does an interesting job explaining that bitterness does not inflict revenge or justice on other people. You do not get someone back by bitterness. You may simply make your own situation worse.

However, I do not mean to confuse the issue or make things foggy. I can understand that bitterness is not equivalent to seeking capital punishment for someone who very clearly murdered another person. I am not inherently opposed to capital punishment in all circumstances.

Judge Posner said, "I do not favor public executions; nor dismemberment or other horrific modes of execution. The incremental deterrent effect might well be nontrivial, but would be outweighed by public revulsion. There is also the danger of brutalization. As Friedrich Nietzsche pointed out, making people squeamish is one of the projects of modernity, and may explain the banning of blood sports as well as the movement away from public and gruesome executions. The idea is that if people become unaccustomed to bloody sights they will be less likely to employ violence in their relations with other people. Still another objection to public and gruesome executions is that they offer murderers an opportunity to die as heroes by showing fortitude."

If it were demonstrated that such added punishments have a large effect in reducing the number of murders, outsourcing such executions to certain Middle East countries (which already follow such policies) will avoid the negative externalities you mention. Furthermore, the information asymmetry introduced by such an outsourcing or rendition policy in the minds of criminals will act as an additional deterrent.

Not a single person among the 119 that he contends were erroneously sentenced to death was executed. That is a zero error rate.

This is awfully silly. The argument is that because many people have been exonerated when their cases were investigated in detail, it is reasonable to infer that some who were executed without such investigation were also innocent. That is surely a sensible conclusion.

There is also the danger of brutalization

It seems to me that if the danger of brutalization is a reason not to torture and maim prisoners because of the risk of desensitizing people to such acts (making them less squeamish about violence) then this same argument could be applied to capital punishment as a whole. In other words if public torture send the signal that toture is socially acceptable, mightn't public death sentences send the signal that killing is acceptable?

Murderers do, in fact, plead guilty to avoid the death penalty. But that is not a very strong argument that the death penalty deters the COMMISSION of murders. A guilty plea is taken after a criminal has been caught, charged, imprisoned and provided with counsel; all of this, as Dr. Johnson noted, tends to concentrate the mind wonderfully. The effect is usually beneficial, opening a criminal’s mind to the influence of people with better judgment, including his lawyer, his family and even other inmates.

Under very intense and immediate pressure, therefore, murderers will often act in a way to avoid the death penalty – in this case, by pleading guilty. But that hardly implies that a large proportion of POTENTIAL murderers also act this way when – usually alone and often in a rage – they feel the impulse to strike (not necessarily to kill; many murders are simply assaults gone wrong). Perhaps if some innovative program supplied lawyers to potential killers, the plea bargain argument would carry greater weight.

It is nice to read what seems like an honest discussion. Capital punishment is a form of control in a social risk management system. It tries to control the risk of crime. A modern risk management system is however extremely dependent on the internal environment or culture of the entity (nation in this case).

Primarily crime should be controlled by building such common culture which finds violence and breaking of common accepted rules non-acceptable. The capital punishment, although perhaps having a deterrence effect, may have even greater negative effects on the internal environment of the society. Violence may become a generally accepted and legitimate form of solving problems.

Most of us, still, seem to recognize this externality when it comes to post-execution brutality.

The external effect on the risk management philosophy and ethical values of a nation should be taken into consideration when evaluating the value of capital punishment as a control activity against the risk of crime.

Coming from Finland with no capital punishment I would like to know, is violence an accepted response to problems in general in the U.S.?

There is logical support for Justice Posner's comments regarding revenge. Recognizing the function of revenge in a society may be troubling as it does not show a societies best side, but that does not invalidate the utility of institutionalized revenge.

The instinctual desire for revenge exists even in rational actors. If a societies demand for retribution is poorly met, we invite self-help in the form of vigilantism. While this perhaps not an ideal solution, willful blindness is no solution at all.

Mr. Holmberg indicates a very valid idea
"Primarily crime should be controlled by building such common culture which finds violence and breaking of common accepted rules non-acceptable."

This process has been demonstrated as effective in the United States. Mayor Giuliani's "Zero Tolerance" enforcement policy in NYC measurably decreased crime rates not by focusing on the worst offenders, but by supporting a culture of civility. Typical New Yorkers no longer had to tolerate negative behaviors just because it was not criminally serious and therefore beneath police notice.
Do we favor Punitive deterrents for rational reasons? Is punishment politically easier to legislate in America because it is less expensive then policing?

Becker says: "However, I admit I would reconsider [public executions] if it were demonstrated that such added punishments have a large effect in reducing the number of murders." At least he has the courage to accept the logical conclusion of both previous arguments. Your excuse (quoting Nietzsche doesn't make it better!) simply draws a line that you -- but not I -- find acceptable. I'm more squeamish than both of you, does that make me more civilized?

What both of you miss is that capital punishment has an insignificant effect on crime. We should be discussing ways to reduce recidivism, to reduce the sense of hopelessness among the underclass, to improve education in the inner cities. This would do far more to reduce crime than executing a 1000 people a year. Abolish executions, claim the moral high ground, and attack the source of crime with real solutions.

As an atheist, I find it remarkable that the devoutly Christian South so eagerly executes criminals for revenge. What would Jesus freakin' do?

FYI: When you use evolutionary psychology/biology to bolster your arguments, you are really scraping the bottom of the barrel. Those crackpots are worse than intelligent design nuts. If revenge is deeply ingrained in our psyche, then why are the Europeans so opposed? Duh...

Dude:

It may be that you're right about addressing the root causes of crime. But when the US tried something like this, with more generous welfare benefits and job training and such along with more lenient treatment of criminals, we got a big increase in crime rates. So it's not clear that we're smart enough to address the root causes effectively. On the other hand, we may be smart enough to mostly convict only guilty people (I hope so) and to either lock them up or execute them so they don't rob, rape, or kill anyone else.

Dude:

Europeans are so opposed to the death penalty because they are much more enlightened and sophisticated than americans. It has nothing to do with their truly horrifying history with the practice that makes us look like pikers.

The two best reasons to oppose the death penalty have not been mentioned here:

1. As Posner mentions, the threat of the death penalty induces people to plea bargain. As a result, we have to worry about innocent people plea bargaining for life sentences in addition to innocent people being wrongly executed. Having a death penalty puts a very powerful, easily-abused threat into prosectors' hands. Appellate courts can correct errors in the use of the death penalty but they are ill-suited to correct errors in the use of the threat (or of other prosecutorial threats).

2. I would argue that the death penalty in America today is less racist than arbitrary -- the convoluted appeals process is just one piece of evidence for a wide variation in quality of trial counsel, jury sympathies (including race), IQ, and other factors that make the death penalty less a predictable certainty in extreme cases and more a roll of the dice. This is neither good for justice nor for deterrence.

Otherwise, IMHO, the anti-death penalty arguments here are mostly not very good. As a rule, any time someone writes "it is logical to assume X" or "it is reasonable to think Y," then it is neither logical nor reasonable to do so.

Posner BTW has a great point about revenge, although I don't entirely agree with his utility calculation. IMHO, one of the major benefits of civilization is to replace the chaotic violence of revenge cycles with an orderly justice system that defuses or sublimates the need for revenge. IMHO, the biggest utility gain is due to the reduction of excessive revenge against innocents and third parties, not from the satisfaction of the revenge instinct. A criminal justice system that people trust thus prevents lynchings as well as deterring other forms of murder.

I always find these discussions interesting. However, the issue was settled by the Supreme Court in the 1970's by bifurcating the guilt phase and punishment phase. I thought the Supreme Court came to a fair compromise.

Overall, liberals are against capital punishment and conservatives for it. The victims rights movement suggests that capital punishment is an effective deterrent.

GARY:

That's generally true, but the question is, why are liberals usually opposed and conservatives usually in favor of it? I can see two broad thread of thought in this discussion:

Some people want to talk about whether CP works well (that is, does it deter crime and can it be applied with only extremely low errors). That's an empirical question, albeit one with enough complications that it's hard to get a solid answer. But we can at least imagine having a solid answer to that question, even if we don't have it now. A lot of people would stop supporting CP if they were convinced that it either didn't deter any murders, or was too hard to make sure you were executing the right person.

Others want to talk about the morality of CP. That's a question that can't be answered empirically, though it's clearly a big issue. (Crucifying convicted murderers would surely have an even bigger deterrent effect than painless execution, and crucifying their whole family a bigger deterrent still. The reason we're not going to do those things isn't an issue of whether the policies would work, it's an issue of morality.)

It's interesting to ask why more liberals than conservatives come to one side or another of these issues. Is this fundamentally a fact-based disagreement (like with arguments about the best trade policy), or a value-based disagreement (like with abortion)?

"One commenter asks whether capital punishment 'really deter[s] the type of person who actually does the murdering?'"

I believe I was that commenter. Obviously, when I said "the type of person who does the murdering" I didn't mean the actual murderers, who by definition were not deterred. I meant, of course, the demographic pool (defined by factors including SES and race) from which the murderers disproportionately come. (Hint: it's likely not the same demographic as commenters on this blog).
I questioned whether the alleged deterrent effect of the death penalty can be demonstrated specifically with respect to that demographic, and I still do.

In 1983, 62.5% of released prisoners were arrested again within 3 years. In 1994, the rate was 67.5%. [Bureau of Justice] Most people who went to prison were *NOT* deterred from committing another crime! 184K out of 272K prisoners decided to rob, rape and kill again (statistic is from 15 states, so the national number is much higher). How many executions would it take to deter this many criminals?

In the past ten years, the crime rate has plummeted across the country because (1) the crack epidemic burnt out, (2) there are fewer young males in high crime zones, and (3) the economy lifted poor people a bit.

I don't know what specific government policies could further reduce the crime rate, but my hunch is that growing the economy one extra percent does more to reduce crime than 1000 executions a year. Free condoms would probably reduce the future crime rate more than CP. A certain low level of crime will always exist in a big country. Grow a pair and deal with it.

My point is that we are having an emotional debate about an insignificant tool in crime prevention. If CP is primarily about vengence, then let's sate America's bloodlust with a spectacle worthy of ancient Rome. But don't whimper behind Nietsche's back when you see real blood.

PS. If torture reduces the recidivism rate substantially, would it be worth it? If we put it to a vote, I'll bet Americans would pass it by a wide majority.

Dude:

One other factor in the lower crime rate is that there are a lot of criminals currently locked up. One pretty obvious (though expensive to all involved) way to keep recidivism down is to just not let the criminals back out. I'm not saying that's a great way, just that it does seem to work.

I agree that CP is probably not a very big factor in deterring murders, though I'm not any kind of expert. The thing is, everyone knows that if you kill someone, the police will take it very seriously, and you're reasonably likely to at least go to prison for it. And CP as implemented now seems to have so much uncertainty and delay, its deterrent effect is probably pretty attenuated.

My sense is that most people approach the CP issue based more on emotions or moral judgements (compassion vs. revenge) than on a cold-blooded analysis of number of innocents executed vs number of prospective murderers deterred.

Well said. I totally agree with you. The point you are making here does make sense.

I agree with you the way you view the issue. It is also interesting to see different viewpoints & learn useful things in the discussion.

We may be "modern" but I think it's safe to say Americans and western Europeans are not more evolved as a species than we were in the time of public hangings or when our not-all-that-distant ancestors carried out orders to administer lashes, draw & quarter, etc.

As a child of the 20th century who has seen video of human skin sloughing off of bodies due to nuclear weapons or napalm, images of deathcamp bodies stacked like cordwood in trenches, or the Zapruder film, I must respectfully disagree with the idea that "modern" experience has shielded our people from brutality. I think we have been exposed to brutalities an order of magnitude greater than those of earlier eras in many senses, actually.

If revenge is permissible because it arises organically out the human psyche, I am afraid that the human proclivity for butchering is just as organic. Justice Holmes supported the castration of "idiots," so what's one human body part, more or less, to serve the ends of justice and revenge? An eye for an eye, a tooth for a tooth. It used to have literal meaning.

To advance an economic argument, I would submit as a "modest proposal" that permitting the State to dismantle elements of the human body as a punishment is a much more sensible approach. It permits finer gradations of punishment more closely tailored to fit the crime. In keeping with modernity, convicted persons could relinquish body parts or inconvenient areas of the brain in sterile conditions with the use of anesthesia.

Perhaps even more interesting is the modern capacity to permanently or temporarily modify an offending human body: GPS microchips, use of pharmaceuticals, temporary paralysis, etc. The efficiencies seem obvious and execution seems a relatively unimaginative and crude tool by comparison. Not at all "modern."

I don't think we should sell ourselves short when it comes to our ability to stomach brutality, even in 2005/06!

Just wondering what you think should be the punishment for an executive who steals billions from investors (or a board that looks the other way).

It seems correct that a large number of people commit small property crimes when the deterrent is low, as is clearly the case in today's world.

But it seems equally clear that a small number of people commit large crimes when the deterrent doesn't even equal the potential payoff.

I am with you--capital punishment. One CEO and that might wake them up eh?

I have no doubt revenge had an adaptive survival value in the "ancestral environment". However, this is not a reason to support the satisfaction of this instinct in the modern context. In addition, it can be reasonably argued that in the South, were the majority of executions take place, there exists a psychic schism; Christianity explicitly admonishes the believer, "... Love your enemies, do good to them that hate you, bless them that curse you, and pray for them which despitefully use you. And unto him that smite you on the one cheek offer also the other." and the ever popular, "Thou shall not kill." (Bible literalists tend to be selective about which tenets they abide by). Further, for males, the "ancestral environment" also hardwired the indiscriminant spreading of one's seed into our psyche, yet we are not only expected to control ourselves, but are punished if we fail to do so in situations where "seed spreading" is inappropriate or criminal.

Finally, regarding the secondary deterrent effect, one must equally acknowledge cases where exculpatory evidence is not clear and therefore the accused pleads guilty, in spite of their innocence, in order not expose themselves to the death penalty.

"one must equally acknowledge cases where exculpatory evidence is not clear and therefore the accused pleads guilty, in spite of their innocence, in order not expose themselves to the death penalty."

I doubt that this happens very often, outside of made-for-TV-movies. What does happen is that someone who has committed a homicide, but has a technical defense of some sort, will plead guilty to manslaughter or aggravated assault, or even some non-capital form of murder, rather than test the defense at trial. People who are truly innocent -- who have been misidentified by witnesses, for example -- almost always insist on trial.

I wonder if the blog might have a post focussing just on the accuracy of criminal procedure. My impression is that it is inefficiently accurate for capital cases compared to, say, life imprisonment cases.

One way economists look at criminal penalties is as the price to the criminal of committing a crime. If I want to assault someone, I can do it if I am willing to pay the expected penalty--- just guessing, I could beat you to a pulp (nonfatally) for a 10% probability of 10 months in prison-- that is, for 30 days in prison. (Let's suppose I'm judgement-proof too, to keep things simple.)

In this sense, people who oppose the death penalty put a very low value on human life. I can murder you (or you plus 10 other people) if I am willing to pay a certain probability-- let us say, 50%--- of 40 years in prison. The death penalty would at least make me pay a 50% probability of losing my own life. Since my life may not be a very high quality one (I being a despicable murderer), this might still be a good deal for me, but it raises the price to the maximum possible, torture aside.

My comment is somewhat related to Mr. Curley's... it seems to me that you haven't refuted at least one significant economic argument against capital punishment. You call for more efficient systems of appeals, to increase the deterrent effects and decrease the cost of imposing the death penalty. Granted the moral acceptability of the death penalty, it's certainly logical to want to avoid wasting public money. However, I suspect there is only a limited scope for such savings, since the public, reasonably, wants to make sure the system has iron-clad protections. So we're going to spend a large sum of money no matter what. Is this the best use of our crime-prevention dollars? Perhaps we could get significantly more deterrence by spending our money elsewhere, on more police, speedier trials, etc.

There's a political aspect to this as well: I have the impression that many politicians use their pro-death penalty stance as a way to deflect political pressure to do other, more effective things to reduce crime rates.

"Dude" argues that "we tried that" with job training, etc., and it didn't work. It's my impression that actually, the Nixon Administration spent a fair sum on drug training, and it *was* effective. More to the point, police depts. seem to do a better job now... so they might be able to use extra money more efficently than they did in the past.

Good, thank you, wonderful
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