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January 27, 2010

Some "scientific" and "academic" discussions of death penalty deterrence

Though we did not have time for me to finish connecting my themes of scientific discovery and deterrence theory in the context of the death penalty, I do have space on this blog to link to lots of (totally optional) reading on the topic of whether the application of the death penalty in the United States may actually save innocent lives. 

Specifically, a collection of some of the recent scientific-data-crunching research on on the deterrent effect of capital punishment is available here from the Criminal Justice Legal Foundation.   In addition, a few years ago Professors Cass Sunstein and Adrian Vermeule created a stir with a provocative law review article suggesting that new deterrence evidence might make the death penalty morally required for states concerned with value of life.  In this older post you can find links to this paper and to various responses it has generated.

If you do some Google searching, you can quickly find lots of other websites with lots of other death penalty deterrence discussions.  But you will generally find that folks/organizations against the death penalty are often eager to stress studies and evidence undercutting deterrence claims, and that folks/organizations for the death penalty are often eager to stress studies and evidence bolstering deterrence claims. 

In the comments to this post and in class next week, I would like to hear thoughts about whether folks believe this kind of bias is inevitable and unavoidable in all studies/debates about deterrence (whether in the death penalty context or in other criminal justice settings), or whether I should continue to hope that someday will we have good enough scientific tools and smart enough researchers to come to a definitive conclusion as to the "true reality" of deterrence in the application of particular types of punishment.

January 27, 2010 in Deterrence, Pro/Con arguments surrounding the death penalty | Permalink


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Deterrence is lawful only if it aimed at the defendant. Killing a chicken to scare a monkey (Chinese proverb) violates procedural process right of the chicken to a fair hearing. The deterrence of others is an improper motive for a penalty. It violates lawyer ethics, and is really an intentional tort.

The deceased executed prisoner is not deterred, but incapacitated. Incapacitation is the sole mature and acceptable aim of the criminal law. The rest either have religious origins or do not work.

Although the SC are a group of horrible cult criminals, one case affirming deterrence was in torts, and it applied to the defendant.

Posted by: Supremacy Claus | Jan 28, 2010 12:14:59 AM

All remedies likely have dose-response curves. Too little a dose and it fails. Too high a dose, and toxicity results. Within the proper dose, there is a wide range of doses for individuals to benefit.

Example. Penicillin is a miracle drug. Before it, 90% of pnuemonia patients died. After its introduction, 90% of pneumonia patients survived. Miracle, no?

Now give penicillin at one tenth the dose, seven years after the start of pneumonia, to only 1 in 100 pneumonia patients. Charge $million a course of treatment. Of those given it for pneumonia, 20% do not have pneumonia. Does penicillin appear to be a miraculous drug anymore.

All legal remedies involve procedures on the body. As such, they should be shown to be safe, and effective before getting adopted. The dose-response curve must be worked out.

Assume general deterrence is a valid goal of the law. What number of executons would decrease crime and make everyone feel safe walking anywhere, at any time of day? What fraction of certain crimes should be answered with the death penalty? How long after the verdict should it take place to maximize its benefit?

Once these theoretical questions have been answered, then the remedy should be tried in real life in a small jurisdiction, to be repeated in larger ones. We are interested in acceptability, unintended consequences, and to draw the contours of the dose response curve.

Posted by: Supremacy Claus | Jan 30, 2010 7:20:06 PM

In class last week, we discussed the science/faith theory as it applies to the death penalty through the analogy of Copernicus. Professor Berman pointed out that faith adapts, just as religion adapted to Copernicus's theory (although not without a fight, and a long time). So would this happen for the death penalty? I'm not so sure the debate is the same. The substance of the idea that would be forfeited if, for example, it was proven that the death penalty DID save many innocent lives, is the principle that we should not take away the lives of other people. Is this idea easier to give up for anti-capital punishment advocates today than it was for the earth-is-the-center-of-the-universe advocates? I think the argument could go both ways.

What I do think works in our favor today is not a less stringent hold on faith, but a greater respect for science. Let's take, for example, the global warming debate. The anti-global warming activist does not hang his hat on the principle that faith compels the conclusion that the earth is not getting warmer. Rather, he relies on any (even if not a lot of it is out there) credible scientific evidence he can find to debunk it. This is the same debate over the death penalty. Unlike Copernicus's time, where faith was an accepted substitute for science, I think today's time at least has to acknowledge the science that is out there. Thus, in terms of the death penalty, faith-based or any-other-based biases for or against the death penalty will display their biases THROUGH science, rather than instead of it. To me, this signals the point that it becomes harder to take one side when science compels the other. If the death penalty deterrence science grows in strength and credibility, and if ever to an absolute certainty, I think that the biases will fade (or, perhaps, recreate themselves in a new form that acknowledges its deterrence/lack of deterrence value, but criticizes/supports it for another purpose).

Posted by: John Hamill | Feb 6, 2010 4:22:20 PM

Behind all faith is a priest making a living. Faith is a synonym for economic self-interest, mostly from a scam (Give me money now, you will be rewarded after death - no scam is neater). In the case of the lawyer, this effect is called rent seeking. That is a synonym, an economics technical euphemism, for armed robbery of the taxpayer by government agents. The word, "faith" thus delegitimizes the advocacy, per se. You cannot make a legal argument based on a criminal act. Beyond the per se illegitimacy, is the small obstacle of the Establishment Clause.

That being said, Daubert applies to expert testimony in the criminal trial. Challenges from both sides are likely to enhance the accuracy of verdicts. Daubert challenges to protect the trial from its established disrepute are likely to be very fruitful before any policy dispute will ever get resolved.

Posted by: Supremacy Claus | Feb 6, 2010 9:55:51 PM

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