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September 10, 2020

A claim that deterrence impact might make the death penalty morally required

I mentioned in class that I think conclusive evidence that executions saved (or cost) innocent lives would be a game-changer in capital punishment debates.  Some years ago, Professors Cass Sunstein and Adrian Vermeule authored a provocative article suggesting that deterrence evidence might make the death penalty morally required for state actors seriously concerned with the sanctity of human life.   Here is a link to this article and its abstract:

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.

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 10, 2020 in Deterrence, Pro/Con arguments surrounding the death penalty | Permalink


Sad that a lot of the posts by CJLF are broken or behind pay walls.

Luckily, the essay you quote is not! I've only gotten through maybe a quarter of it but it oddly reminds me of Pascal's wager. See the link for a refresher (and Santa Claus): https://sites.google.com/site/profdavidkatz/history-of-christianity/pascalswager

I also find myself thinking about this from Elon Musk's point of view, or alleged point of view, that humans are just biological computers. When one of them isn't working properly, what's so bad about turning it off? Where are we deriving morality from? Fake people in the sky? AND if we get a net benefit, of even just 1 computer system saved by turning another one off, what's the big deal? This mirrors your argument in class that we humanely believe the best thing to do to a lame horse is off it...Not saying it's right or wrong, just one lens with which to approach the issue.

Posted by: Christopher Wald | Sep 14, 2020 10:44:02 PM

My primary issue is the fact that this practice seems unbothered with the actual culpability of the individual who is to be killed and is instead focused on the benefits for society. Because of this, the entire concept reminds me of the archaic practice of sacrificing a virgin for a successful bounty or favor with the gods. When the primary concern of execution shifts from punishment of wrongdoing to the achievement of an unrelated social good, the act begins to resemble a sacrifice more than it does a punishment.

Also, at some point, the repugnance of an act must outweigh the societal benefits (and diminish the morality of the actor). While the practice of taking a thief's hand would likely prevent future harm to property, it is highly unlikely that this practice would be accepted by society or courts today (even though the 5th amendment seemingly contemplates the loss of limb). I understand that society is likely more willing to stomach gruesome punishments for the sake of protecting lives, but it is not like less gruesome alternatives do not exist that could achieve the same societal benefits.

While, as incarceration currently stands, LWOP does not fully incapacitate individuals, since they are likely to commit further violence in prison. But I do not see how the logical remedy for that issue is taking a human life instead of reevaluating the way we incarcerate people.

What is more, successful rehabilitation and reintegration into society could offer even more benefits to society by saving lives AND adding another contributing member to society.

Posted by: Ellen T | Sep 17, 2020 2:24:00 PM

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