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

[GARYGECH]

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.

[albatross]

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)?

[ER]

"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.

[Dude]

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.

[albatross]

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.

[ashley]

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

[ethan]

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

[Eric Gates]

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. J. Ucé]

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.

[David Hammer]

"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.

[Eric Rasmusen]

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.

[Eric Rasmusen]

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.

[AAT]

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.

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