Further Comments on Capital Punishment--Posner

Becker has presented in his post today a compelling restatement of the economic case for capital punishment. I have a few minor disagreements and qualifications, and I will first mention them and then respond to some of the very large number of comments that my last week's posting elicited. I do not consider revenge an impermissible ground for capital punishment. Revenge has very deep roots in the human psyche. As I have long argued, basing the argument on work by evolutionary psychologists such as Robert Trivers, the threat of revenge must have played an essential role in maintaining order in the "ancestral environment." That is a term that evolutionary biologists use to describe the prehistoric era in which human beings evolved to approximately their current biological state. In that era there were no laws, police, etc., so the indignation that would incite a person to revenge himself upon an aggressor must have had substantial survival value and become "hard wired" in our brains. The wiring remains, and explains some of the indignation that people feel, especially but not only the friends and family members of murder victims, toward the murderer. It seems plausible to me (here modifying what I said in my original posting) that the net increment in utility that they derive from the execution (versus life imprisonment) of the murderer exceeds the net increment in disutility that the murderer derives from being executed rather than imprisoned for life. The strong support for capital punishment in public opinion polls provides limited support for this conjecture. 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. I agree that marginal deterrence is important and that it generally argues for reserving the heaviest sentences for the most serious crimes. But there are two important qualifications. First, a very heavy sentence may be necessary to deter a minor crime because the likelihood of apprehension is very low. The expected punishment cost of crime is, as a first approximation (ignoring attitude toward risk), the punishment if imposed multiplied by the probability of imposition, so if the probability is very low a compensating increase in punishment is indicated. This does not impair marginal deterrence as long as the crimes are not close substitutes: a heavy fine for litterers will not increase the robbery rate, whereas capital punishment for robbers would increase the murder rate (of robbers' victims)--were it not for my second qualification. Even if murder and robbery were both capital crimes, there would be marginal deterrence because the police would search much harder for a robber who murdered his victim; the more extensive search would compensate, in part anyway, for the loss of the information that the victim could have given the police to identify the robber. Moreover, capital punishment is merely a ceiling; even if robbery were a capital crime, judges and juries would be much less likely to impose the death sentence on a robber who had not killed his victim than on one who had. Marginal-deterrence theory provides, however, a compelling reason to execute prisoners sentenced to life without parole who murder in prison; the threat of a sentence of imprisonment can have no deterrent effect on them. Becker mentions the possibility of racial discrimination in execution. Studies done some years ago--I do not know whether they would be descriptive of current practice--revealed the following pattern: murderers of black people were less likely to be executed than murderers of white people. Since blacks were more likely to murder other blacks than to murder whites, this meant that blacks were less rather than more likely to be executed than whites, relative to the respective murder rates of the two races. (Blacks commit murders at a much higher rate than whites.) The explanation offered was that judges and juries tended to set a lower value on black victims of murder than on white ones. From this some observers inferred that capital punishment discriminates against blacks. The inference is incorrect. The proper inference is that murderers of blacks are underpunished. I turn now to the comments on my posting. A long comment by "ohwilleke" makes a number of interesting points, but they do not support his opposition to capital punishment. He notes first of all that many factors influence the murder rate besides the probability of execution. That is true, but it does not, as he suggests, make it "insanely difficult to make any econometric estimate" that is not "meaningless." Econometrics, which is to say the set of statistical methods used by economists to try to tease out causal factors, enables the particular factor of interest, in this case the probability of execution, to be isolated. The methods are not entirely reliable, which is why neither Becker nor I claim that economists have proved that capital punishment deters; we merely claim that there is significant evidence that it does. I note how many commenters remark correctly that murder rates are higher in the South, even though that is where most executions occur, than in other regions. But that is not an argument that executions do not deter. The higher the background rate of murder, the more severe one expects punishments to be. A high murder rate implies a high expected benefit from murder and so the expected cost of punsihment has to be jacked up to offset that greater benefit. 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. One commenter asks whether capital punishment "really deter[s] the type of person who actually does the murdering?" Of course if someone in a state that has capital punishment commits the kind of murder that puts him at risk of such punishment, the threat of capital punishment has not deterred. This is the usual situation with criminal punishment. People who commit crimes are people for whom the expected cost of punishment, combined with the other costs of crime, is less than the expected benefit of the crime. 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. Finally, several comments usefully point out that capital punishment has a secondary deterrent effect: it induces murderers to plead guilty and receive a life sentence.

Comments

[Harris]

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).

[Tom Termini]

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!

[Justin]

"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?

[Justin]

"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.

[Bruno Boquimpani]

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).

[john]

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.

[JT]

"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.

[JT]

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

[albatross]

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.

[David Tomlin]

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/

[David Nieporent]

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.

[Arthur E. Gandolfi]

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.

[Bill Churchill]

A totalistic approach to the ìdeterrenceî 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 ìremedies?î Or, is it more an emotional one where ìrevengeî 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 ìpolicy issue?î It is primarily a policy issue because there is no underlying Newtonian-style ìscienceî 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 ìTruthî often intersect, but pragmatic effective policy and truth are often not the same. Policy is, in part, the product of agreementónot 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 ìdeterrenceî 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 suppressionónamely 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 ìso badî that they must be ìput down,î than we need to decide how we are to decide who those people are.

Posted By: Bill Churchill

[overcoming bitterness]

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.

[Arun Khanna]

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.

[Bernard Yomtov]

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.

[Tim Maly]

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?

[David Hammer]

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.

[Jan Holmberg]

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.?

[Gregroy R. Curley]

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.

[Gregroy R. Curley]

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?

[Dude]

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...

[albatross]

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.

[Me]

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.

[DK]

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.