January 11, 2007
Assembling recent DP deterrence literature
As I mentioned in class, last year Professors Cass Sunstein and Adrian Vermeule created a stir with a provocative article suggesting that new deterrence evidence might make the death penalty morally required for states concerned with value of life. Below I have provided links to this paper and various responses it has generated:
- Cass Sunstein & Adrian Vermeule, Is Capital Punishment Morally Required? Acts, Omissions, and Life-Life Tradeoffs
- Carol Steiker, No, Capital Punishment is Not Morally Required: Deterrence, Deontology, and the Death Penalty
- John Donohue & Justin Wolfers, Uses and Abuses of Empirical Evidence in the Death Penalty Debate
- Cass Sunstein & Adrian Vermeule, Deterring Murder: A Reply
- Eric D. Blumenson, Killing in Good Conscience: What's Wrong with Sunstein and Vermeule's Lesser Evil Argument for Capital Punishment and Other Human Rights Violations?
- Thomas Kleven, Is Capital Punishment Immoral Even if it does Deter Murder?
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Some comments about today's class discussion:
1.) Absence of evidence is not evidence of absence - this adage applies to the assertion that few/no innocent persons have been executed in the US in "modern times". This axiom has more import given that undeniable exculpatory evidence (e.g., DNA) is not available for the majority of defendents, and certainly is not available for cases more than a few decades old. Moreover, at least one court decision denied the post-mortem testing of evidence for a match from a death row case. A few years ago when this case was still hot, I wrote DPIC and the innocence project suggesting that an exhumation could be requested for post-mortem testing, but my suggestion was rebuffed (probably by some low level PR person - at least such was my impression).
2.) I'm not sure I understand the relevence of the suggestion that drunk drivers receive capital sentences for the utilitarian/consequentialist goal of deterrence. (And I'm not a lawyer, but I wonder if the issue of intent is not germane here.) Extending this analogy, we could cook up a list of myriad crimes for which we impose the death penalty, and I can bet that if we had our way, we could further many consequentialist goals by imposing that penalty for an ever-expanding spectrum of crimes. (Deontological concerns abound with such an approach however.) Moreover, there are other ways to further these consequentialist goals, foremost among them for drunken driving: prohibition. But given that society implicitly accepts (if only through acquiescence or status quo bias) 15K deaths per year due to alcohol as the cost for having alcohol legal for enjoyment, I doubt that same society (unless unbelievably sanctimonious) would find imposition of the death penalty a fair punishment for drunken driving.
3.) The counterfactual analogy of the island for "faked executionees" would be fine if one's concern were solely for the possibility of executing an innocent person and only if one were completely immune to the implicit and explicit consequences for government and society of this kind of an opaque and deceitful arrangement. that is, one's utility for 100% certainty regarding guilt would have to outweigh one's utility for transparency in the legal process.
4.) The example about not "bowing to terrorist demands" harkens to the intersection of utilitarianism and game theory; that is, for the individual occurrence, the consequentialist would be better off to release the prisoner rather than have 10 people killed by the terrorists; however, life is an iterative procession of choices, and this immediate victory would give a later advantage to the terrorists, and said consequentilaist might ultimately be worse off.
5.) Most of the arguments today were at best a distraction from the real issues that the death penalty debate embodies: an apparent clash between the utilitarian and the deontological. It matters little if feeding starving children is more cost effective than killing criminals: 1.) I can think of a litany of public health choices that we could make that would be more cost effective than capital punishment; and 2.) cost effectiveness arguments are not useful unless we can define and agree a priori what our utilities and preferences are, what we should compare them to as a referece standard for cost-effectiveness, and if we are even willing to take cost effectiveness into account at all in the death penalty debate.
Posted by: Scott A | Jan 11, 2007 6:47:26 PM
All great points, Scott, though point 5 most clearly spotlights my chief goals for the discussion -- i.e., helping everyone fully appreciate the inevitable consequentialism vs. deonology theory "clash" in this arena.
(As you spotlight in point 3, those who assert they are deontologically opposed to the death penalty because of concerns about wrongful executions are generally unwilling, if pressed hard, to sacrifice all utility to that end. Likewise, as you rightly note in point 2, those drawn to consequentialist arguments for (or against) the death penalty can rarely avoid conceding some retributivist-based side-constraints.)
Put another way, the goal of my coverage of the death penalty "in theory" is to make clear that it, like all other hard moral issues, always returns to the "theory clash" for which few have personally discovered a truly sound resolution.
Posted by: Doug B. | Jan 12, 2007 1:01:45 AM
reply to John Donohue & Justin Wolfers
Zimmerman, Paul R., "On the Uses and 'Abuses' of Empirical Evidence in
the Death Penalty Debate" (November 2006). Available at SSRN:
" . . . (Donohue and Wolfers' "D&W") criticisms of Zimmerman's analysis are misrepresentative, moot or unsupportable in terms of the analyses they perform." "It is shown that Zimmerman's published empirical results, or the conclusions drawn from them, are not in any way refuted by D&W's critique." pg 3)
"This later estimate suggests that each execution deters 14 murders on average . . .". (pg 7)
"It is shown that D&W made a number of serious misinterpretations in their review of Zimmerman's study and that none of the analyses put forward by D&W (which ostensibly refute Zimmerman's original results and conclusions) hold up under scrutiny. (pg8) " . . . D&W do not even report Zimmerman's "preferred" results correctly, and then proceed by carrying on this error throughout the remainder of their critique."(pg8)
"Of course, (D&W's) omission tends to create a strong impression that Zimmerman's analysis 'purports to find reliable relationships between executions and homicides', when his actual conclusions regarding the deterrent effect of capital punishment are far more agnostic." (pg10)
" . . . D&W's method of interpreting their results is not consistent with that proscribed by the received econometric literature on randomized testing . . .". "As such, D&W's interpretation of their randomized test in itself does not (and cannot) reasonably lead one to conclude that Zimmerman's estimates suggesting a deterrent effect of capital punishment are spurious." (pg12)
" . . . D&W do not appear to have interpreted their randomization test in any meaningful fashion." (pg14)
" . . . the state clustering correction employed by D&W may not be producing statistically meaningful results." (pg16)
"And while D&W once lamented that recent econometric studies purporting to demonstrate a deterrent effect of capital punishment yield 'heat rather than light', as shown herein, their criticisms of Zimmerman (2004) tend to yield 'smoke rather than fire'."(pg26)
Posted by: Dudley Sharp | Mar 24, 2007 7:37:49 AM
reply to Donohue and Wolfers
"The Impact of Incentives On Human Behavior: Can we Make It Disappear? The Case of the Death Penalty", Naci H. Mocan, R. Kaj Grittings, NBER Working Paper, 10/06
--- "This analysis shows that attempts to make the deterrence effect disappear are ineffective." (p 16)
--- Existence of the death penalty, in law, has a statistically significant impact on reducing murders. (p 23)
--- Execution rates show significant impact in reducing murders. (p 13 & 23)
--- Death row commutations, and other removals, increase murders. (p13 & 23)
--- The criticism of our studies is flawed and does not effect the strength of the measured deterrent effect.
Posted by: Dudley Sharp | Mar 24, 2007 7:41:10 AM
One of the ever prevailing, well intended, poor arguments is that the risk of executing innocents is a solid reason to end capital punishment.
However, a failure of reasoning, required for such decisions, is missing.
Because innocents are at risk of executions, some wrongly presume that innocents are better protected implementing a life without parole sentence, instead.
What many forget to do is weigh the risk to innocents within a life sentence. When doing that, we find that innocents are more at risk with a life sentence.
First, we all know that living murderers, in prison, after escape or after our failures to incarcerate them, are much more likely to harm and murder, again, than are executed murderers.
Secondly, no knowledgeable party questions that the death penalty has the most extensive due process protections in US criminal law. Therefore, it is logically conclusive, that actual innocents are more likely to be sentenced to life imprisonment and more likely to die in prison serving under that sentence, that it is that an actual innocent will be executed.
Therefore, in choosing to end the death penalty, or in choosing not implement it, some have chosen to put more innocents at risk.
Furthermore, possibly we have sentenced 25 actually innocent people to death since 1973, or 0.3% of those so sentenced. Those 25 have been released on post conviction review.
(NOTE - the alleged 123 exonerated from death row is a deception spread by anti death penalty folks and those who fail to fact check)
If knowledgeable people were to dream of an accurate criminal justice system, could they imagine a system more accurate that 99.7% in a finding of guilt, for actually guilty people and a 100% record of freeing those actual innocents within post conviction review.
I don't think they could.
Please review: Sincerely, Dudley Sharp
Posted by: Dudley Sharp | Mar 24, 2007 7:49:13 AM