Would you be so sanguine if you, or some one
you love, were the person unjustly being
executed? Would you be able to argue with
the same rigor the benefits to society at
large despite its small margins of error?
I am genuinely curious.

I am an avid reader of your weekly comments and almost never disagree with either your analyses or conclusions. While I have no religious bias against capital punishment and certainly not a scholar's familiararity with all of the studies, I do seriously doubt the conclusive demonstration of deterrance cited by Erlich and other more recent studies. It seems to me that the very citation of 59 executions in a year when there was 7000 murders leave a very serious mathmatical doubt about the value of deterrance. Moreover, law enforcement organizations and prosecutors are under enormous pressure to "solve" and punish crime. I would suggest that pressure and the competative structure of our judicial process leads to more frequent error than is generally admitted or recognized.

Everyone dies eventually. If the money that rich people spend on such frivolous pursuits as landscaping their yards was instead spent on scientific research to engineer an "immortal" vessel for human consciousness then billions of lives would eventually be saved. Even if that money was merely spent on eliminating the worst effects of world poverty in the short term then tens of thousands of people every day would be prevented from dying premature deaths.

The usual argument that rich people use to justify frivolous personal spending is that there is a difference between taking a human life and not saving a human life: that it is not murder to fail to act to save another human's life. They would further argue that even if their money was spent on world poverty then it is not completely certain that lives would be saved.

Richard Posner's argument in favor of the death penalty seems to be that by killing someone with complete certainty there is a chance that society could save some other people's lives. It is not, however, at all clear that killing one person is exactly balanced by the indirect possibility of saving someone else.

In a democratic society, the existance of capital punishment will be closely tied to that society's views on killing people in order to achieve some objective. It is not scientifically meaningfull to discuss a deomcratic society in which these two things are not tied together.

A democratic society that had both the death penalty and also had the view that taking human life for any reason was wrong would have a very low murder rate but such a society would, by definition, not exist.

A scientifically meaningful question would be: "Does the choice of a society on whether to have the death penalty correlate with it's homicide rate?" Similarly, it would be scientifically meaningful to ask: "If a leader, who is already in power in a democratic government, chooses to advocate for or against the death penalty, how will that affect the murder rate?"

It is not, however, scientifically meaningfull to ask: "Does the death penalty increase or decrease the murder rate?"

Ultimately, the death penalty is merely a chance for a society to express its aesthetic preferences. If my personal aesthetic preferences were aligned with that of the United States there would be the death penalty for leaders (both corporate and political) who abused their power (eg. using their authority to mislead or take freedom from their constituents) and also for reckless and aggressive drivers.

On the other hand, the down and out who grew up in broken homes and killed someone out of pure stupidity would merely get life in prison. Essentially, the death penalty would only be used on those who were smart enough to be deterred by it.

Unfortunately, cohort comparison with many countries that do not have the death penalty seems to show that one can have a much lower murder rate while still not having a death penalty.

I think it is far more important to determine why the murder rate is so high in the U.S., despite the existance of the death penalty here.

I must admit that I am not a fan of giving the state any additional power over life or death than absolutely required, although I certainly do not think that the death penalty, when applied to actual murderers, is abhorent in and of itself.

The study of Hashem, et al, leaves a great deal to be desired. Simply put, we don't know to any meaningful degree of certainty how much deterrent effect the death penalty has because none of the studies, theirs included, are good enough to tell us. We know that places with the death penalty have higher murder rates than places without the death penalty, and we also know that a great many factors other than the state of the law have far more powerful impacts on murder rates than the laws in a particular state. Being in an inner city or not, and a host of demographic factors are far better predictors of murder rates. New York City, for example, has seen dramatic changes in its murder rates without adopting the death penalty.

We also know that a great many murders that could factually qualify for the death penalty are not charged as capital murder, and that there is very strong statistical evidence to show that the single biggest factor in determining whether murder will receive the death penalty is that the victim was white and that the perpetrator was a black man. Intraracial murders and murders committed by a white man (or any woman) against a black man are far less likely to result in the death penalty.

Because the impact of the death penalty is, at best, a third or fourth order effect in terms of predicting the number of murders committed, it is insanely difficult to make any econometric estimate whose error bars when the data is fairly considered, doesn't render the actual prediction meaningless.

We also know far more about actual innocence as well as "legal innocence" than the post would suggest. Between 1973 and March 2005 a total of 119 individuals have been exonerated and freed, and more have had their sentences commuted from death to a lesser sentence. From 1976 to 2004, 944 people have been executed. When the error rate in the initial death penalty conviction is about 10%, it is hard to have confidence that a meaningful number of wrongful executions of actually innocent people aren't carried out. Wrongful convictions follow a well established profile. They typically involve eye witness misidentifications and/or jailhouse snitches and/or incompetent defense attorneys. But, juries generally aren't informed about the degree to which this kind of evidence has been historically unreliable, and indeed, frequently give it greater weight than other evidence. Until steps such as those taken in Illinois are taken, the reliability of conviction is far lower than the post suggests, and equally important, there is a subclass of those convictions that present a particularly high risk of wrongful conviction which the appellate review process and habeas corpus process that endures so long does little or nothing to address, because every step of those processes relies on the principal that a jury's findings of facts as to disputed issues of witness credibility may not be disturbed on appeal. Coupled with the fact that most death penalty counsel are grossly undercompensated (many people on death row have counsel who were paid under $10,000 in current dollars to represent them, while it isn't ususal for an insurance company to spend $30,000 defending a simple automobile accident) and underqualified in death penalty states, this is a huge issue. While the appellate courts are focused on procedural errors by defense lawyers in the courtroom, the usual problems that cause the innocent to be executed are a lack of factual investigation prior to trial and outside of the court process by the defense (often appallingly little), and bad decision making by juries who believe witnesses who are among the least reliable. Neither is addressed in appeals other than an ineffective assistance of counsel claim which is involves a very high standard of incompetence.

The 59 executions in a year number is also deceptive. There are more than 3,500 people on death row. More than 2,000 of them have been in prison for at least seven years. Tookie Williams was in prison for twenty-five years, if I recall correctly, prior to his execution. With or without death penalty appeal reforms a deluge of executions is approaching.

It is also worth noting that while many states have the death penalty, most executions have taken place in just a handful of states (which have among the highest murder rates in the country). More than half of executions since 1976 have taken place in Texas, Virginia and Oklahoma. Add Missouri, Florida and Georgia and you have accounted for about 70% of all modern American executions. This leaves a very small sample size upon which to base any econometric model and also doesn't account for facts like whether the relatively recent pheomena of making life without parole available in cases that would otherwise be capital has changed the deteurrent effect of the death penalty.

Right now the death penalty costs considerably more than imprisonment to implement per case. Generally speaking, the more important deteurrent factor has been the likelihood of being convicted of something, rather than the punishment that will be received. People who don't think they will get caught are unlikely to care about the punishment.

Judge Posner's presumption that rational individuals would prefer life imprisonment to death counters Beccaria's 18-century presumption that rational individuals would prefer death to life imprisonment. Arguably, both presumptions are historically correct. In the 18th century, prisons were not nearly such comfortable and well managed places as they are today. Life in prison was unpleasant to say the least, and life imprison would not have been vastly preferable, or much longer, than immediate death.

Today, as Prof. Becker has pointed out elsewhere, prisons are far more comfortable places. Indeed, he has argued that the deterrent effect of the death penalty could be further increased by making prisons even more comfortable. See http://minneapolisfed.org/pubs/region/02-06/debate.cfm.

I commend for Posner for a delightfully delicious post. Here he sidesteps psychological or utilitarian critiuqes and explicitly advocates for the swift death of innocents.

Does capital punishment deter murders? Do severe penalties for criminals who commit crimes with guns reduce the number of crimes committed with guns? If a state increases the penalties for illegally using a gun, are criminals rational and do they change their behavior? I don't know.

Why and how do crimes escalate to murder? The killer is often impaired, drugs or alcohol. But my gut instinct is that if the potential killer knows that committing a murder means that he will almost certainly be committing suicide has to deter some potential killers. Certainly many spouses have been saved because the anger felt was not enough to commit the equivalent of a murder suicide – or so my wife tells me.

Gang killings are often a cost of doing business or part of a desire to advance within the gang. Perhaps increasing the cost of advancement to include a death penalty risk may alter behavior. But gang members have more to fear from gang rivals then the court system and may prefer a trial by twelve then to be carried by six.

I understand the death penalty in some cases. For example, the death penalty for killing a police officer makes perfect sense. You tell the criminal that as bad as their present situation may be, if they kill the arresting officer they face the death penalty. For profit killers must understand that they can be tried and executed at some future date. While not all potential killers can be deterred, clearly some potential killers can be encouraged to take alternative actions.

I favor the death penalty, but I sometimes fear that I am just pretending that the threat of a death penalty gives me some control over a violent segment of the population – Like a raised fist swearing at an approaching storm.

Posner might have analyzed the impact on deterence that rehabilitation has, i.e., murderers who convert into saints in prison convince potential murderers that the desire to murder is an abnormal, transitory feeling. In the face of such information, potential murderers recognize that the desire to murder is wrong rather than a just and normal desire, and so reconsider their plots, deciding instead not to murder. Such a decision not to murder in the face of compelling evidence of rehabilitation is rational; obviously murderers are rational if they can be increasingly deterred by increasingly severe penalties. That Posner neglected to analyze the deterrent effect of rehabilitation vitiates his entire argument; one can simply reverse the polarity of his entire argument so that it is an argument in favor rehabilitation.

As Posner himself says,"The utility comparison seems a standoff, and I will ignore it." Why, then, should we not ignore Posner?

I don't doubt the deterrent effect of the death penalty on murder rates, but I oppose it for a different reason than has been mentioned here: the existence of a (federal) death penalty makes it easier for this punishment to be abused in the future, even if it is not abused now.

I would consider the illegality of the death penalty to be an important check on the size and power of government.

Donald Dawson wrote:

"Moreover, law enforcement organizations and prosecutors are under enormous pressure to "solve" and punish crime. I would suggest that pressure and the competative structure of our judicial process leads to more frequent error than is generally admitted or recognized."

This is an understatement. I suggest that most persons who actually practice criminal law know that there are a good number of police officers who have no problem telling lies to the jury. These officers may justify this practice because they "know" the person is guilty.

"most executions are in southern states--50 of the 59 in 2004--which that year had a total of almost 7,000 murders".

I take it, then, that the 7000 figure was just for "the southern states". The total figure for the US was much higher, meaning that outside the South, we executed nine people in a year when many thousands of murders were committed in those states. Outside the South, the ratio of executions to murders is surely below 1/1000. Do you still think it true that people would pay a substantial price to eliminate a 1/1000 chance of execution? Would that be rational? At what point is the risk too remote to constitute a real deterrent?

When one factors race and socioeconomic status into the composition of the Death Row population, it's hard to imagine a middle-class white person being executed for a single plain vanilla murder. The risk of being executed would surely deter me, a middle-class white person, but I have almost zero risk. Does it really deter the type of person who actually does the murdering? Very unclear.

All this assumes the statistical validity of the methods used by Ehrlich and his followers, at least as applied to the death penalty data. The raw data, as you know, wouldn't lead you to guess at that result:

"In 2003, the South had the highest murder rate in the country, and that appeared to continue in 2004 even as the South carried out 85% of the nation's executions. The Northeast, which had no executions in 2004, had the lowest murder rate in 2003 and that position appeared to remain the same in 2004." (courtesy of the Death Penalty Information Center).

I also think you are giving short shrift to the likelihood that factually innocent persons are being executed. The number of Death Row inmates freed in the past decade just on factual innocence grounds seems to make it a statistical certainty that we have killed some factually innocent people. I would feel much better about this if I thought governors in death penalty states knew the difference between "there is overwhelming evidence of guilt" on the one hand, and "the jury found him guilty and the court of appeals affirmed" on the other, but they obviously don't. Trial lawyers, however, are all too aware of the gulf that yawns between those two statements.

A couple of additional factors I would be curious to see analyzed vis. litigation costs for capital defendants. If it is a rational choice these days to prefer life in prison versus execution, then doesn't the ability to have the death penalty on the table encourage defendants who are likely to be found guilty at trial to plead to a life sentence? (Thereby leading to fewer trials and associated costs). Also, if the death penalty is banned, what do we do with the person who might have been executed, but during the course of his life sentence escapes to kill someone else (or kills an inmate, etc.). How would that potential loss of life (which would not have occurred had the criminal been executed) factor into the analysis? Actually, on the inmate issue, what would stop the psychopath from killing others while in prison if he knew that the worst penalty he would receive is more of the same (i.e., more life sentences)?

I would also be interested in Judge Posner's views on the Cory Maye case being discussed at http://www.theagitator.com/. Maye is on death row after shooting a police officer who entered his home during a "no knock" raid. Maye claims that he thought they were intruders breaking into his home, and that he shot the first person who entered his bedroom (where his infant daughter was sleeping). As soon as he heard someone say "police" he put his gun down. In my opinion based on what I have read, there is no way this guy should be executed for capital murder. Tookie Williams, however, deserves what he got.

I daresay that the risk of executing an innnocent person--no matter how slight--is the single most compelling (and unanswerable?) retort to those who favor the death penalty.

Few people would readily trade their own life for the chance to take someone else's.
When people commit murders they do it with some, perhaps naive, notion that they will evade prosecution, or more likely they fail to calculate the utility of the situtation.
Life imprisonment has a major effect also. If someone were to stop and calmly calculate or even briefly consider that punishment and it was certain, they would rarely if ever commit a crime which would result in that terrible punishment.

The important question is why do people make these
significantly irrational choices? Is it because:
a) they don't believe they will be caught, or
b) they assume they will be caught but the crime is worth spending the remainder of their life in prison.

I suspect that "a" is much more likely and it links back to other parts of our legal system were petty crime is not enforced significantly.

I know that speeding on a highway is illegal, however after countless hours of breaking that law I have never been reprimanded. This is one of the reasons that the Bratton police approach of attentativeness to small crimes is so effective. Every time we commit a given crime and aren't punished we think less about it the next time to the extent that we recklessly disregard many crimes like speeding, littering, or even for some more serious crimes like embersslement. *As the underenforcement of petty crimes raises brazeness it probably also contributes to serious crimes.*
Life imprisonment and capital punishment are both less effective as deterents because people are so used to getting away with crimes. If we did a better job with petty crime, both would become potent deterence tools. Alas, we rely on state execution when speeding traps might work.

In a similar vein to what Paul N. wrote, the deciding factor that turned me against the death penalty is concern that it might be expanded and applied more widely in the future. In the 1980s and 1990s Congress passed laws that provided for a federal death penalty for some levels of involvement in criminal drug enterprises, i.e. crimes that involved contraband but not the death of another person.

This led me to a personal turning point of opposition to the death penalty. I fear the public becoming inured to the prospect of applying in cases where it might shock us today, especially in future times of turbulence. Failing strong evidence that it is greatly superior punishment for murder -- evidence I have not seen -- I prefer to take this dangerous tool out of the hands of a government that might abuse it.

This is no merely theoretical concern. The crime bills passed in the 1980s and 1990s and the growing number of people in prison for drug offences are demonstrations of a trend that seems to amount to a competition among legislators to pile ever harsher punishments on some categories of crimes. I think this competition is disconnected from rational calculation of the costs and benefits to society. In such an environment, the legislature must be deterred by ordinary voting citizens when we detect that their zeal has gone out of control. Taking capital punishment away from them seems a reasonable step, and one that many peer societies and indeed many US states have adopted without terrible costs.

Deterrance is irrelevant. Deterrance cannot distinguish between the practice we have adopted now and the far more brutal and public practices our ancestors used.

If lethal injections deter murders, then it would better deter murders to put people on the rack in the middle of the town square and render them limb from limb. It would deter crime to hang the severed heads of criminals from the walls of the White House. However, I doubt even the most zealous among us would advocate doing that. Something else is staying our collective hand, pushing us to seek the most "humane" way possible to murder black criminals... what could that be...

Capital punishment is a moral question. I submit that the most nasty, guilty, evil, sane person on death row today does NOT deserve to be murdered by the state. Yes, the work of the Innocence Project has proven to anyone who will look that "factually innocent" people have been murdered for someone else's crimes, but that obscures the point. Capital punishment is morally wrong even when it is used against the right person. Full stop.

Capital punishment is not an economic question. It is not analyzed economically by criminals, law enforcement, or the American people on the street. Only Governor Ahnold weighed the political cost benefit of murdering Stanley Williams. But in the end, the public rationalle that even he used to justify sending Stanley to die was "he didn't apologize enough." Show remorse or we will kill you... beg for mercy or you die...

Dostoevsky said that "A society should be judged not by how it treats its outstanding citizens but by how it treats its criminals." Well, by that metric our society is the least moral among our peers.

In the face of disapproval and scorn from enlightened citizens of the world past and present, the American academic establishment struggles to find justification for its barbaric social practices. "2% of our population in prison?... war on crime." "Executing a reformed peace activist?... economic analysis of the penal system." Well I call foul, Stanley Williams' appeal took so long he had time to prove the case against capital punishment. The social value of human life does not end when someone commits a capital crime.

I am impressed by Posner's analysis, but I have a quibble with your disregard for the disutility of those who are anti-death penalty. While those who are pro-death penalty may be glad to be rid of murderers and rapists, the rest of us become murderers and rapists by virtue of our complicity with the state.

Shouldn't an economic analysis of the death penalty consider socio-economic disparities in its application? My concerns with the death penalty have always centered on the disparate impact of its application in relation to the ethnicity of the accused (which is well documented) and an informed supposition that the death penalty is imposed more frequently on those of lesser economic means. I was also somewhat troubled by Judge Posner's almost dismissive statements regarding the "innocence" of death row inmates and all but equating such unjustified, but certainly intentional, executions with mere accidents.

Isn't it undisputed that states with the death penalty do not have lower murder rates than those with the death penalty. In fact I seem to recall a study a while back that said just the opposite.



Incidentally, I love it when Posner writes a wonderfully sterile, utterly emotionless, and quite excellent economic analysis of a controversial topic (rape, abortion, drugs, capital punishment) and people get upset due to his seeming lack of emotion on the topic which, needless to say, they find quite emotional. Hopefully Posner's next treatise will contain a chapter entitled, "An Economic Analysis of the Use of Aborted Crack Baby Flesh as a Food Substitute for Starving Third World Death Camp Populations." For our general enlightenment and for my amusement at the response.

Truman Capote famously commented on the deterrence of the death penalty in a Playboy interview decades ago.
I do think the letters tend to fall into two groups.1)Those who cricize your cited studies by citing data(but not study design.)The letter by Don Dawson:"there were still 7000 murders,so it wasn't a deterrent"seems not to realize there mat have been more murders-according to Ehrlich-had there not been a death penalty.Please consider reading a crticized study,and commenting on why it's wrong.(Confession,that study has been on my pile"to read" since October).But,always remember,a study may have findings you don't like,without being wrong.
The bulk of the other letters seem to fall in the pattern exemplifed by Corey:It is wrong.(Presumably because Corey believes it ot be wrong.)In Zelaznys famous short,"The Last Defender of Camelot",Lancelot remarks to Merlin,"The burden of proof is on the presumed moralist".
Let me make my point.Asume Prof Ehrlich's study is correct,i.e. capital punishment prevents 18 killings for each person executed.Would you still be anti death ppenalty.Certainly Corey would.It seems to be a quasi religious point of view and such a view is entitled to respect.But It's like some feedback from the rest of the anti Posner group regarding this.
Now,it's time for me to go to work and make a few bucks,but I want to add a little personal information.Without going into detail,I have a lot of experience with the prison system (and a fair amount with people on Death Row)First,prisons are uncomfortable,frightening ,dirty,very often painful places.They are not comfortable.Inmates are miserable.Secondly,I only knew one person on Death Row who wanted to die.

...the death penalty for killing a police officer makes perfect sense. You tell the criminal that as bad as their present situation may be, if they kill the arresting officer they face the death penalty.

That only works if they haven't already killed a police officer. Otherwise, you've just given them every incentive to fight to the death and take as many people with them as possible.

Without the death penalty, criminals know that the worst that will happen if they give themselves up is life in prison but that if they fight back they may get an immediate "death penalty" by being shot to death.

Its always good to see Mr. Posner arguing that executing the innocent is unlikely and a necessary evil to get deterrence. Of course Mr. Posner as Judge Posner appears to have voted to send at least factually innocent man to his death who was later exonerted and may have voted to execute a man who, despite a plausible claim of innocence, was executed.

Of course, deterrence studies are widely reviewed as bunk and you can get what ever result you want by simply chosing a dataset that gets you the result you desire. Donohue III, John J. and Wolfers, Justin, "Uses and Abuses of Empirical Evidence in the Death Penalty Debate" . Stanford Law Review, Vol. 58, December 2005,

From the abstract ofthe Donohue & Wolfers article:

Does the death penalty save lives? A surge of recent interest in this question has yielded a series of papers that purport to show robust and precise estimates of a substantial deterrent effect of capital punishment. We assess the various approaches that have been used in this literature, testing the robustness of these inferences.. . . We conclude that existing estimates appear to reflect a small and unrepresentative sample of the estimates that arise from alternative approaches. Sampling from the broader universe of plausible approaches suggests not just reasonable doubt about whether there is any deterrent effect of the death penalty, but profound uncertainty - even about its

"Presumably because Corey believes it to be wrong."

Well, yes, me and some cross-section of society that agrees with me... oh, and most of Europe, but if we start asking Europeans for input on our social policies, then where would we be.

One doesn't have to be religious to look to moral absolutes, one merely has to recognize that cost-benefit math is inadequate to this particular task. Capital punishment measures things which are arguably unquantifiable (human life) against deterrant probabilities that are unprovable. While the Posner blog debates the merits of whatever studies that are submitted for its consideration, more human beings are being prepped for execution.

If you want to talk of studies, what of the substantial literature suggesting that certainty of punishment rather than severity is the number one correlation to deterrant effect? You can say what you want about the death penalty in America, but few would say that its application is certain. What if all of the money currently spent on death appeals was instead spent on investigation of murders? Might the increased conviction rate have more deterrant effect than the occasional socially controversial revenge killing?

If deterrance really was the prime justification for capital punishment, then proponents of capital punishment would at least entertain the above questions. However, I think the real reason people like capital punishment is vengeance. As I said over on the Becker side, go stand outside a prison while an execution is taking place. The protesters aren't holding signs that say "set an example." Their signs say "burn in hell" and "say hello to the devil Stanley"

So we can pretend that there is some rational justification for capital punishment and debate the efficiencies of various policies, or we can admit to ourselves that the primary beneficiary of state sponsored murder is the peace-of-mind of the general population.

Are blacks disproportionately killed by the state because they commit more violent crimes? Sorry... Ted Bundy, Dahmer, the Green River Killer... all white. Maybe because they are disproportionately poor and lack the resources OJ had to get themselves off. OK, but why does economic class change the nature of the offense? If the justice system was fair money wouldn't matter to innocence. Or is it because black men are disproportionately cast as criminals in every media we see. What does a prosecutor, a judge, or a jury presume when they see "unidentified black male" sitting in a courtroom?

Capital punishment compounds any disproportionate unfairness left in our judicial system by giving it permanent effect over a life.
Every year, many minority defendents get death sentences for the same crimes that whites get life for. That doesn't deter anything, rather it perpetuates racial disparity and animus.

But, we needn't even reach the question of racism in application of the death penalty, because all application of the death penalty is wrong. Widely held moral absolutes are great that way. Act such that your actions might be willed to be a universal imperative. Do unto others as you would have them do unto you.

If Posner's support for the death penalty stands or falls on its deterrent value, then he is, at bottom, a utilitarian. The ends, if they are noble, justify the means. But most humans are not so antiseptic; life and death are more than an equation. We, therefore, must struggle with this issue, while Posner finds peace in a statistic.

It seems the crux of the arguments boils down to three premises:
1) The death penalty deters murder.
2) The rate at which murder is deterred exceeds the rate at which the death penalty is implemented.
3) There's no difference between active and passive murder.

My feeling is that premise 1 follows from the law of demand; we know that people almost always choose less costly behaviors. Hence the "they don't think they'll be caught" arguments doesn't hold up. People who buy life insurance don't think they're about to die, but they know there's a chance so they do it anyway.

Premise 2 seems to be supported by the cited studies.

Rejection of premise 3 seems to be the crux of the morality argument. That it's okay for government to not prevent murder but it's immoral for it to commit murder. This seems contradictory to me, since the actions amount to the same results. I've never really heard a justification for why they're different.

There's is a lot of armchair theorizing about what murderers are thinking during murder and whether death penalties really deter them. Surely this is pointless: I doubt very much the mind of a murderer at the moment of his crime can be unravelled from first principles or by projecting ourselves into his mind.

What matters is the evidence. A lot of work has been done looking at it, with mixed results. More useful to instead focus on that.

Let me ask this question. If we start of with the assumption that the death penalty has no deterrence value, is there still any justifiable basis for preserving the death penalty?

I think deep down inside retribution is the main reason for having the death penalty. Courts love to say that's not a basis for punishment, and sure enough revenge is not one of the 3553(a) factors for federal sentencing. But if you talk to someone who favors the death penalty long enough you'll realize (and they'll readily admit) that revenge is the primary purpose they favor capital punishment.

I agree that any notion of taking "Tookie" Williams' advocacy into consideration would have demeaned the notions of repentance and reform. We really don't know whether his reform was really real. Williams played the fool in committing the crime--he should be man enough to suffer the consequences.

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What we do know is that Williams will never commit another murder. We really had no assurance of this fact before he was executed. Was he guilty? That also is no longer a question. Williams is history. The thing went down according to nature--live by the sword, die by the sword.

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The death penalty should be applied in the most egregious cases as a special type of deterrent. It is a deterrent to the individual that has already committed a murder in that, once he is caught AND executed, he will be deterred from being able to commit further murders. Williams, Bundy and Gacy will never murder again (at least in this reality as we know it).

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This having been said, the fact that there even is a controversy points up the need for stronger rules of procedure in deciding whether a state should put a man to death. The "beyond a reasonable doubt" standard of the criminal courts is flawed in that it has failed in a number of cases. Though the number of "false positives" is a comparatively small number, there are some economic decisions that should not be reduced to mere numbers--and so, we cannot leave the process as it is. (Remember the Ford Motor Company's executive decision to not enhance the safety of its Pinto automobile because a cost-benefit analysis suggested that it would be un-economical to do so? Remember the numerous deaths that resulted?) When life is on the line, we need to be sure. I recommend a standard of "Overwhelming evidence beyond a reasonable doubt of an aggravated murder," coupled with mandatory judicial review all the way to the supreme court (of the appropriate jurisdiction). Once it is determined that a "murderer" is indeed a murderer by this standard, there can be little controversy among reasonable people about whether one that would commit such a crime should live to do it again.

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(Incidentally, how do I get your blog to recognize carriage returned paragraphs?)

OK. I just answered my own question. I can't preview the final form as it will be seen, but my paragraphs made it into the posted document.

Thanks.

Your current "superstar" Stephen Leavit, dismisses the detterent value of the death penalty in his Freakonomics book. How can two "economists" see the data so differently?

Also you failed to address the cost benefit analysis of the cost of killing these people (legal and otherwise) vs. the deterent effect of the death penalty.

Wes: [The death penalty for killing a police officer] only works if they haven't already killed a police officer. Otherwise, you've just given them every incentive to fight to the death and take as many people with them as possible.

Whatever society adopts as its maximum punishment-- whether it is life in prison, a lethal injection, or being burned at the stake-- we will have the problem that someone already facing the maximum punishment cannot be deterred from committing more crimes, especially if those crimes might lead to escape, in which case there is an upside but no downside to committing them.

In order to minimize this problem, the state should have as broad a range of punishments as possible. Conversely, the punishment saturation problem is worst if there is only a narrow range of allowed punishments (e.g., the death sentence for every crime).

Wes: Without the death penalty, criminals know that the worst that will happen if they give themselves up is life in prison but that if they fight back they may get an immediate "death penalty" by being shot to death.

So in your scenario, the "death penalty" may be applied by armed officers on the scene, but what if there is only one officer and the criminal has the drop on him? The rational criminal should shoot him in the back and make his escape. Likewise, the criminal should execute any unarmed witnesses, when doing so reduces the chance of capture without making the cost of capture any worse. Only when he is clearly surrounded and outgunned should the criminal regretfully throw down his weapon and head back to his cell.

I believe Judge Posner missed one very important element of the utility of capital punishment for our criminal justice system, and that is its ability to get defendants to plea-bargain to the highest cost non-death sentence the government can give = life in jail. Without the death penalty as a bargaining chip, nobody would ever plea to spending the rest of their life in jail.

Prosecutors/police can play a high-stakes game with a defendant - "it's 90% likely the jury will find you guilty and execute you, why not just spend the rest of your life in jail." Even though if a person is found guilty on the capital sentence it may takes decades to be executed the (obvious) fear one has of this may force a decision favorable to the prosecutor.

Whether tempting a man to forgo a protected jury trial with visions of his own death is moral or ethical is a seperate debate.

And I didn't follow it all, but if Tookie Williams was actually getting kids to not join or quit gangs, that's more lives saved than the state executing a human being. Even if it was an 'act', it a quite good act to encourage.

Seems like the most important fact has been left out of this economic analysis: executing a citizen costs approximately twice as much as keeping them in prison for their natural life.

A purely economic analysis weighs against the death penalty. I don't see a great deterrent effect - especially considering that most murders are not particularly risk sensitive or risk averse to begin with.

Furthermore, the costs associated with the long legal process and accompanying pre-execution incarceration override any savings associated with not having to keep a prisoner in jail for life (particularly after he becomes aged and infirm).

Finally, the death penalty has costs associated with the continuing political debate and attention paid to murderers who are celebrities solely because they are condemned.

Considering these realities, the death penalty is really an expensive luxury maintained by the state. Why does a majority of the American people still support this morbid and barbaric luxury? A reason I personally find compelling, but which is discussed only infrequently is "blood atonement."

http://www.firstthings.com/ftissues/ft0508/articles/bottum.html

Richard Mason: So in your scenario, the "death penalty" may be applied by armed officers on the scene, but what if there is only one officer and the criminal has the drop on him? The rational criminal should shoot him in the back and make his escape.

All other things being equal, the rational criminal should probably shoot the officer in the back regardless of whether the penalty is death or life in prison. If the criminal tries to escape without shooting the lone officer first then the criminal will likely be shot in the back himself and effectively receive an immediate death penalty.

An added observation which still holds true: the eighteenth century penologist, Cesare Beccaria, posited that it was the CERTAINTY of punishment, rather than the SEVERITY of punishment, that would deter criminal behavior.
Accepting this premise, the belief in the death penalty as a deterrent appears to be misplaced given all the variables attendant to criminal prosecution.

I thoroughly enjoy reading these posts and the arguments that Professor Becker and Professor Posner present as well as the comments from readers. Being an economics graduate student, the chance to interact with two persons of such high regard is extremely motivating.

To start, I would like to know how we even begin to measure the deterrence of murder. I feel like that is an impossible task. I do not know of any known realistic way to quantitatively or qualitatively measure a person?s inclination to commit murder so that we can ultimately measure how well we have ?deterred? them from committing a hypothetical murder. So, to me, the fact that we deter murder based on the death penalty is somewhat of an unsolvable chimera. Is it that we are simply comparing crime rates within a given time frame, trying to control for the death penalty to see what would have happened had we not utilized it or vice versa? Honestly, good luck to whoever tries such experiments of which I think are fruitless. People either commit murder or they don?t commit murder, and there is no in between. I feel that there is no percent chance of committing murder and that introducing and enforcing the death penalty can reduce this percentage. It is resolute in that it either 100 percent happens or 0 percent otherwise, whether or not it was 1 or 10 murders, murder still happened, a percentage of murder did not happen.

Furthermore, I think that cross-country comparisons of the introduction of the death penalty and its effect on reducing murder and other ancillary crimes of that nature are quite unfair and biased. There are too many variables to control for, too many psychological, physical, etc. differences to account for that any estimate we receive would not only be inefficient but biased too. Comparing numbers is quite easy, given their relative nature and the major advances we have in the fields of econometrics, mathematics, and other fields which have pioneered quantitative and qualitative techniques to aggregate data, but just because we can compare numbers and produce refined data doesn?t mean that we have done the actual problem any justice.

If we are about measuring the murder rate and the effect of the death penalty has on its minimization, then please allow me to ask a few questions?how well has the death penalty deterred you from committing murder? Can you quantify and qualify your answer? Also, can you give me the answer in pure dollar terms? How much are you willing to pay for a one percent reduction in the crime rate, 2 percent, and so on? If there were no death penalty, what would be the chance of you committing murder? Etc. These are rough questions and quite unsettling to answer, nearly impossible to answer and person A?s answers will be different from B?s, and B?s from C?s, C?s from A?s, and so on until you have so many different answers of which there is no way to aggregate them.

Personally, I have no answer for any of those questions I asked. I do not think that anybody can give a reasonable answer for any of those questions or for any questions along those lines. The current measurements we have in this respect and with respect to deterring crime, I feel, are unfair. To me, they seem like the all too familiar problem we have in microeconomics with measuring an individual person?s utility and producing a utility function for them and in a larger aspect, producing a representative utility function that can apply to the representative consumer. In microeconomics, I think this is merely used to put the model in a nice, mathematical form and that they serve no real purpose because not only are they highly unrealistic, but their use as a benchmark to compare the real world to serves no purpose because they are never used but to solve maximization and minimization problems at best. I think that is one of the problems with microeconomics today, but that is another topic all together.

So, in retrospect, I advocate the death penalty merely because I think that if you commit murder, you should have to suffer the consequences irrespective of how reformed you have become or the circumstances which make you feel otherwise. With respect to convicting an innocent person to death, this is an inherent problem in the law enforcement and justice system and has nothing to do with deterring crime and reducing crime rates. Granted you may feel that the death penalty is an inherent problem with the same systems, but isn?t that what we are essentially arguing. We can argue morals all day long and in the end we will probably, in our minds, each feel we are right and not really know the truth but think our individual truth is the ?real truth?.

The death penalty as a crime deterrent is a misrepresentation of numbers and of facts. There is no real way to measure how many murders have been deterred nor is there any way to measure how many murders occurred because we didn?t have the death penalty, and so on. Murder and ?not-murder? have their idiosyncratic traits and maybe the death penalty is correlated with both, but there are too many other variables, too much error in the measurement process, and other threats to both internal and external validity to really bang out a realistic equation of what determines what here. So the question I ask is, what does it mean to deter something that you never really had an idea was going to happen, that you have no reasonably way to measure, and on the other end of the spectrum how do you measure the effect of not having the death penalty on a murder committed?

Please excuse the question marks everywhere as the program I used to type my thoughts and then cut and paste to this site has converted apostrophes into question marks.

A quick devils advocate question for those who find capital punishment immoral - why is it any more immoral than locking up someone for the rest of their life?

Prisons are a dehumanizing experience for 99.9% of the people who go there. (sure there are high end prisons that celebrities go to; the criminal justice system has a vested interest in making sure the Martha Stewarts and Dan Rostenkowski of the world aren't shived in their cells or forced to join a gang) Gang violence and hegemony, drugs, rape, and abuse are the rule rather than the exception. For many, a short sentence functions as a graduate school in the study and application of criminal behavior.

I've never understood how (especially from a non-Christian POV) someone could see a lethal injection as being on a radically different level than putting a man into a cage with others gone wild for the rest of his natural life.

Corey,
Recall my comment that the burden of proof is on the moralist.Simply boldfacing won't do,anymore than someone saying ,"How do I know,the Bible tells me so."Certainly some people agree with you.Certainly more don't.Neither goes to the validity of an argument.Debating you re' something that is a moral absolute is akin to debating someone
who feels abortion is always wrong.Why bother?
Again ,with regards to my points.If capital punishment has an effect that is a net life saver;i.e.more lives are saved than people put to death by society,would that change any minds?I'm not asking people to read any studies.This is an Aristotelian thought question.And I'm sorry i didn't elaboraate on Capote's view.He felt even if an innocent was executed,the net benefit made it worthwhile.(He may have been going for shock effect.)I don't think anyone here would agree with that.
Along those lines:Judge Posner is a big boy (and often referred to as brilliant),so he can undoubtedly take care of himself.So,I ask this question of "anonymous"for informational purpose only.Could you tell details of Judge Posner's mistakes leading to (1)conviction and (2)execution of the two subjects.Courtesy(at least) requires our host and the audience know the basis of your accusations.

COREY: Capital punishment is morally wrong even when it is used against the right person. Full stop.

Listen, Corey, even if one accepts that imposition of the death penalty is a moral question, that doesn't necessarily mean it is immoral to do so. It might mean it is immoral not to do so. See, e.g., Becker's post!

Wes says
�the rational criminal should probably shoot the officer in the back regardless of whether the penalty is death or life in prison.

Your logic escapes me. Start at the beginning of the thread. I said that society wants to deter criminals from killing police officers and that the threat of the death penalty may deter some criminals. I said that I understand the death penalty in such a situation.

You then argue that a killer, who has already killed a police officer, will just go on a killing spree. Perhaps, I don't claim that the death penalty is a 100% deterrent. But when a police officer is killed, what happens? The criminal's risk of capture goes way up. (He will become part of a focused manhunt.) His risk of death at the hands of the police goes way up. (i.e. is risk of a street death penalty is increased.)

You seem to argue that criminals who do not shoot police officers are irrational. If you are correct, and it is so rational for criminals to shoot police officers, why is it a rare event?

Why did the old west hang horse thieves? Because the risk of the criminal being caught was small and the danger to the victim was potentially great. Society wanted an effective deterrence.

Why does kidnapping carry the death penalty? Because the crime is easy to commit and it strikes great fear into a large part of the society, we created severe penalties. Do countries without the death penalty for kidnapping see more kidnappings?

Do countries without the death penalty for kidnapping see more kidnappings?

Like Pakistan? You'd better believe it. I would also note that if we had a more profoundly Christian society that sincerely believed in redemption, public rehabilitation of the kind exemplified by the song "Amazing Grace" would have an equally powerful deterrent effect. What I fail to understand is why, if you support the death penalty, you don't likewise support establishment of Christianity as the state religion.

You seem to argue that criminals who do not shoot police officers are irrational.

To make plausible that the death penalty is an effective deterrent you would need to find realistic examples where a different outcome is observed when only the penalty for killing a police officer is changed.

It is not enough to identify a situation where an officer would be killed without the death penalty if the officer would also be killed with the death penalty. This also applies to situations where the officer would not be killed with a death penalty but the officer would also not be killed without the death penalty.

Looking at the topic more broadly, it is not clear that police officers' lives are any more valuable than other peoples' lives. I mean, maybe we should have a death penalty exclusely for those who murder scientists.

The logic seems to be that police officers are more likely to be killed so they need greater protection. If society was to apply this principle consistently then it should identify other high risk groups and extend such protection to them as well. Drug dealers, for example, seem to be a high risk group so maybe we should have a death penalty for killing drug dealers.

There seems to be an implicit assumption by people in the United States (particularly gun enthusiasts) that the United States government is supposed to grant people enough individual freedom that they would be able to violently overthrow the government should that become necessary.

It is interesting, then, that many conservatives are now advocating deference to authority and, in particular, increased penalties for those who harm authority figures.

While it is not clear that the United States government should facilitate its own violent overthrow, it is also not clear that the United States government should promote deference to its authority. Rather than trusting the government people should require a transparent government that allows them to decide whether its policies are to their liking.

Wes: Drug dealers, for example, seem to be a high risk group [like police officers] so maybe we should have a death penalty for killing drug dealers.

There might be something to be said for formalizing this penalty and regulating it within the legal system, rather than leaving it to be informally carried out by the dead drug dealer's associates.

However, other things being equal, the state has an interest in incentivizing people (or reducing the disincentives) to become police officers. The state has no interest in incentivizing people to become illegal drug dealers.

W says
What I fail to understand is why, if you support the death penalty, you don't likewise support establishment of Christianity as the state religion.

Society does support religion and moral teachings. The state does offer tax breaks to groups that seek to lead individuals down a moral or religious path. We educate our young, at least in part, to make them good citizens. So as a society we do support efforts to lead people on a socially acceptable path i.e. in general, don't kill each other.

People can claim that they are more moral if they oppose the death penalty. I think they are wrong, but they are free to make the claim.

For example, the Amish often refuse to work with the courts when children are molested. Their moral view is that the shunning of the perpetrator is a better, more moral path. I think that is crazy, but to them it is moral.

So I understand a group claiming moral superiority on an issue, but please excuse me if I think we are all made better if we can agree to have more meaningful deterrents to murder and the protection of innocents. And don't imply that I am immoral because I value the life of potential victims more then I do the life of a killer. We can disagree about the deterrence value of the death penalty.

Also, I prefer to reserve the death penalty for a select subset of killers. I have great reservations about the death penalty.

That middle ground isn't easy. If I quickly capture, convict, and execute murders, I may deter more potential killers and save innocent people. But I seek to balance my desire for deterrence with my desire that the individual charged with murder be given a chance at redemption. I hope that even within the worst of us, we find something worth saving. Some killers may deserve some compassion. Some killers deserve to die. And their death serves as a deterrent to others: society is made better.

And I do not support public torture etc. because while it may serve as a deterrent for some, the harm done to the killer’s family, who are often injured by the acts of the killer, is too great. I see the marginal benefit of public torture as small, while the harm done to the family of the killer is potentially severe.

Perhaps this has been mentioned by others but if we make the following reasonable assumptions:

1. All lives are equally valuable
2. All murderers claim they are innocent
3. Each execution prevents more than 1 murder
4. Government's responsibility is to minimize the number of innocent deaths.

Then, a conclusion is that it is optimal for government to execute people regardless of their guilt or innocence since even the execution of the innocent will prevent more than one murder of other innocents.

At the extreme, mass executions of innocent people will undermine the credibility of the system and reduce its deterrent effect. But, given that all (most) murderers claim they are innocent, there will likely need be a large number of innocent executions before the government's credibility declines to the level of the accused murderer.

I think the discussion ignores another consequence of capital punishment that is not incorporated in these studies--and this is a false positive that results from the risk of capital punishment. Specifically, if we believe that capital punishment deters the crime, we must also believe that a risk averse innocent person will cop a plea for a lesser offense. Given the choice between being charged intentional murder, and involuntary manslaughter, what would the risk averse innocent person choose. So, the question is: does the threat of the penalty put the thumb on the scales of justice.

However, other things being equal, the state has an interest in incentivizing people (or reducing the disincentives) to become police officers.

To the extent that there is a shortage of police officers at all, this shortage does not seem so severe that it's necessary to kill people to alleviate it.

It's interesting that given the choice between paying police officers a higher salary or taking human lives as a means of incentivizing people to become police officers, many people would prefer the taking of human lives.

I guess many people value their own money more than other people's lives.

Since this is the holidays, lets look at drunk driving and the death penalty.

(in 2003) 14,630 of those people were killed in crashes that involved a driver or non-occupant with blood alcohol concentration (BAC) of 0.08 or greater. (This is from KeRo Corporation, MADD has a number around 17,000. This does not count those injured by drunk drivers.

If we execute ten drunk drivers a year (drivers who killed someone but survived themselves), I assume we can stop 90% of all fatal drunk driving accidents. Ten executions will save about 13,000 people a year, or 1,300 people per execution. Don't foget the 3,000 people per execution we save from serious injury.

Would you execute ten very guilty drunk drivers to save 13,000 people?

Isn't it moral to prevent such mass murder?

Pettibone,
1)All lives are not equally valuble.(you may be able to use the word "precious" here.)I believe that,say,Denton Cooley's life is more valuble than mine.
2)I know(actually knew) a murderer who never claimed he was innocent,He's been executed.He beat his wife to death while on a furlough.Broad daylight.Traveled over 100 miles to do it.
3)I did state Capote felt the guilt of the person was irrelevant to the deterrent effect.I specifically stated I doubted anyone here subscribed to this.(Actually,even this view isn't new.It is most cleverly expressed in "The Mikado",a 19th century operetta where the Lord High Executioner sings ,"As someday it may happen that a victim must be found,I'm making up a list".
4)At least you address the law of diminishing returns.
Look,too often this forum becomes a "gotcha"-partly-I suspect-to impress the other writers and moderators.Is it possible to address seriously whether any (of the non moralists) one feels there is a deterrent effeect to capital punishment that is beneficial to general society?

Econometrics do not normally provide casual explanations, and in this case appear not to. It would be helpful to the assessment of the various studies finding a deterrrent effect if some causal explanation(s) for the effect would be provided. The probabliity calculations are likely well beyond the abilities of almost everyone involved in the sorts of crimes which might result in a death sentence. If true (I do not know that it is), some other explanatory mechanism must be offered.

A deterrence theory requires a causal story in order to work. (It is one of the things that distinguishes deterrence from impediments or discouraging factors.) I have not read all of the studies cited, but those which I have read offer nothing plausible as a causal mechanism. Absent that part of the story, the most the econometrics could show is the possibity of deterrence, but cannot provide useful evidence of deterrence.

Which suggests that none of the studies finding the presence or absence of an effect tell us anything useful about whether capital punishment is justified.

I usually regret doing this but, Aren't you leaving out a party at interest? It seems to me that if everyone gets "life"; no prisoner has an incentive to behave in jail. What's to stop them from forever trying to escape even if that involves killing one or more prison guards? Isn't the marginal cost minimal, like solitary confinement for a while? Alternatively, I guess society could so construct prisons (with automatic feeding of prisoners and such) but that would itself be at great cost.

So, at least killing a prison guard should recieve a death sentence. The next step away would be kidnap victims and hostages whose killing would have no marginal costs were it not for the death penalty.

Is it possible to address seriously whether any (of the non moralists) one feels there is a deterrent effeect to capital puni>hment that is beneficial to general society?

It is the deterrent effect on society caused by public renunciation of murder by convicted murderers if we had a genuinely redemptive culture in which rehabilitation was the sole purpose of imprisonment.

1. forget about the problem of executing the innocent, for the same problem arises with life imprisonemnt. there may be a longer yime to discover that the convicted was innocent, but the effort will be less--so an innocent person convicted of murder is presumably more likely to have innocence brought to light if he is sentenced to death than if he is sentenced to life in prison.

2. forget about the "its-wrong-to-kill-so-its-wrong-for-the-govt-to-kill" argument: its also wrong to lock people up in small rooms against their will for long times.

3. the problem with capital punishment, is that it is much more expensive than imprisonment, and--despite what posner asserts--there is no compelling evidence that it deters (beyond the alternative).

4. if it did deter, and that justified it, then why not just torture and humiliate murderes before putting them to death in truly painful ways?

>People who buy life insurance don't think they're
>about to die, but they know there's a
>chance so they do it anyway.

There's an interesting question; What percentage of people on death row owned life insurance at the time they committed their crime?