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September 13, 2016

Death penalty deterrence research and arguments that the death penalty is morally required

As I mentioned in class, some years ago Professors Cass Sunstein and Adrian Vermeule  produced a provocative article suggesting that new deterrence evidence might make the death penalty morally required for state actors seriously concerned with value of life.   Here is a link to this article and its abstract, with one line stressed to pick up the theme developed in class that government killing is different-in-kind from other kinds of killing:

Cass R. Sunstein & Adrian Vermeule, Is Capital Punishment Morally Required? Acts, Omissions, and Life-Life Tradeoffs , 58 Stan. L. Rev. 703 (2005):

Many people believe that the death penalty should be abolished even if, as recent evidence seems to suggest, it has a significant deterrent effect.  But if such an effect can be established, capital punishment requires a life-life tradeoff, and a serious commitment to the sanctity of human life may well compel, rather than forbid, that form of punishment.  The familiar problems with capital punishment -- potential error, irreversibility, arbitrariness, and racial skew -- do not require abolition because the realm of homicide suffers from those same problems in even more acute form.  Moral objections to the death penalty frequently depend on a sharp distinction between acts and omissions, but that distinction is misleading in this context because government is a special kind of moral agent.   The widespread failure to appreciate the life-life tradeoffs potentially involved in capital punishment may depend in part on cognitive processes that fail to treat “statistical lives” with the seriousness that they deserve.  The objection to the act/omission distinction, as applied to government, has implications for many questions in civil and criminal law.

Alternatively, if you like digging into social science research, the modern empirical debate over the death penalty should be informed by a collection of some data-crunching on the deterrent effect of capital punishment available via this page assembled by the Criminal Justice Legal Foundation.  Notably, CJLF is supportive of the death penalty; the Death Penalty Information Center is opposed to the death penalty, and it has this webpage criticizing the studies appearing on the CJLF's page concerning deterrence.

September 13, 2016 in Deterrence, Who decides | Permalink


Perhaps the most contentious assertion is that "government is a special kind of moral agent." Is it? Why? How does that actually change the ethical analysis? Is that necessarily the case?

How is an individual different than a government in "always fac[ing] a choice among policy regimes"? Is it simply because people so commonly place so little moral weight on their own decisions? I honestly doubt that the ethical vegan, the climate activist or the deeply religious person sees it this way.

By treating government as a categorically different moral actor, with different rules and values in making ethical decisions, we tilt the balance against the public in its ability to holding government morally accountable.

Posted by: Bryan | Sep 14, 2016 10:21:05 AM

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