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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.

Bruce Moldovan

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.

Bill Churchill

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.


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.


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).


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.


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

Bill Churchill

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.


ryan schultz

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.

Richard Mason

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.

Joe Paul

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."



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.


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!

Dan C

Wes says
ÔøΩthe 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?

Dan C

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.

Richard Mason

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.

Dan C

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 killerís 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.

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