One of the most famous liberal law professors in the United States, Cass Sunstein, has flip-flopped on the death penalty. He used to be against it; now he's increasingly leaning in favor of it, though with qualifications.
Why? Because he looked at the data:
“The evidence on whether it has a significant deterrent effect seems sufficiently plausible that the moral issue becomes a difficult one,” said Cass R. Sunstein, a law professor at the University of Chicago who has frequently taken liberal positions. “I did shift from being against the death penalty to thinking that if it has a significant deterrent effect it’s probably justified.”
That's not just based on some new study that's been cherry-picked from a bunch of conflicting studies out there. As the New York Times reported in November (see the link above), this is the conclusion of about "a dozen recent studies" — studies done by "sophisticated econometricians who know how to do multiple regression analysis at a pretty high level."
Even the mildest conclusion from those studies says that each execution saves 3 innocent people from being killed. And it may be as high as 18.
Now, every study like this is going to be attacked for various cold, impersonal, statistical reasons: not a large enough sample size, not a controlled experiment, etc. I'm no statistician, but it looks like Sunstein and his co-author Adrian Vermeule have already done a pretty good job of rebutting those objections in a scholarly article from a couple years ago called "Is Capital Punishment Morally Required?" Naturally, the studies tried to control for as many factors as possible to avoid the "correlation is not causation" problem, but there's a limit to how much you can do that with the available data.
But I don't want to talk about that, because it's boring. Or, less exciting than the question asked by the title of Sunstein and Vermeule's article. The article is too rich with insights to address in just this one blog post, but I want to take an initial stab at it.
Say you accept the conclusions that have been drawn from the data. Even still, you might have the reaction: "OK, so it's a deterrent, but that still doesn't change my opinion. Killing people is just wrong, period."
Well, I don't think it can possibly be that simple.
Sunstein and Vermeule get very deep into this issue. Not only are they synthesizing a lot of empirical studies, but they're also talking about whether a government policy of actively killing people is morally equivalent to passively allowing people to die.
Admittedly, that's always an incredibly thorny, controversial question. But I think there's an especially strong reason why liberals, of all people, should avoid making the passive/active distinction. And this seems to mean that, yes, liberals should support the death penalty, as long as the conclusions from this new crop of empirical studies are valid.
If you're a liberal (in the sense in which "liberal" is used in modern-day America -- as Barack Obama put it, someone whose views on most issues "correspond more closely to the editorial pages of the New York Times than those of the Wall Street Journal"), then you can't believe that an omission -- a failure to act -- is morally excusable simply on the grounds of "Hey, I wasn't really 'doing' anything."
The thing is, if omissions were excusable, then there would be no moral force to drive liberal policies. If the government isn't culpable for the problems it fails to solve — the things it lets happen — then it doesn't make sense to make an impassioned moral appeal that the government must implement such-and-such a policy to end poverty, protect our children from pollution, etc. If you thought the government could be excused for the things it passively allows to occur with a glib dismissal — "Look, that may be unfortunate, but it's not the government's responsibility" — then you'd be a conservative, not a liberal.*
I'm not trying to caricature liberals as people who think government should try to solve all the world's problems. Of course you can be a liberal but still think there are areas of life that the government should just stay out of. But I do think that liberals share this basic idea that if there's major suffering going on in the world, and if the government is in a good position to do something about it, then the government should act. That qualifier makes all the difference in the world, since people will argue endlessly over which problems can be effectively solved by the government.
But the point remains: liberals hold the government accountable not just for the bad things it directly causes to happen, but also for the bad things it sits back and lets happen.
OK, back to the death penalty. If you believe that the government is morally culpable for the results of its omissions -- the things it lets happen -- then you can't sweep murder under the rug and say: "Oh, that's just something citizens are doing. It's not the government's fault." That would be just as egregious as saying: "It's not the government's fault that private corporations are polluting, so there's no reason for the government to intervene." No, the government has to take notice of these problems and ask: "Is there anything we, the government, can do to stop this?"
Or, as a thought-experiment, you can flip it around. You can start with a government policy in mind ... then take it away ... then ask: "Do I accept causing this result?" It might not be a direct cause. There might be some steps in between. But it would be a cause nonetheless. As an example, when it comes to health care, liberals tend to think of what the government could be doing to help bring about an optimal state of affairs, and then blame the government if it fails to meet that standard.
Now, let's say we know that each execution causes enough deterrence to stop three people from being killed (to use the mildest of the conclusions from those dozen studies). Once you know that fact, you can't sit back and say: "Oh, we just don't like executions — it just gives us a really bad feeling, so we don't do them." That would be too complacent. You need to confront the specific consequences of your choices — including the choice not to implement a certain policy.
So if you keep your government from instituting the death penalty, or if you fight against an existing death-penalty system, even though you know that executing convicted murderers would save innocent people's lives, then you have a lot of explaining to do. Why would you accept a net loss of two lives — three innocent lives lost minus the life saved by not executing the killer?
If anything, that's actually understating it. Most people would consider the death of an innocent person, who would have otherwise lived a normal life, to be more regrettable than the death of a guilty person, who would have otherwise spent a long time (possibly life) in prison.
In theory, the loss of three innocent lives might be canceled out by some other factors, but it's hard to see what those would be. After all, what's more valuable than a human life? It's hard to see why you'd think that saving the one murderer from being executed would cancel out the value of the three innocent lives lost.
Of course, there's always the risk of executing an innocent person. But that's surely a tiny fraction of cases, i.e. the equivalent of a tiny fraction of an innocent life per execution on average. So that doesn't seem to come anywhere near making up for the innocent lives saved by executing people.
You might think I'm assuming that utilitarianism is a valid ethical theory. I tend to think that utilitarianism must be accepted — by anyone who's thinking correctly about things — as being partly true and partly false. I want to talk about that eventually, but that's clearly a whole other blog post.
More to the point, though, Sunstein and Vermeule are very careful to not just make a utilitarian argument, but explain why anyone, no matter what their ethical theory is, should agree with them that the innocent lives saved through executions render the death penalty morally obligatory. I'll have to read more of the article to do justice to their argument. Suffice it to say that it looks like they're making the kind of argument that I'll agree with: if you think life is sacred, you have to engage in some kind of utilitarian balancing to avoid contradicting yourself.
Sunstein & Vermeule's article is so interesting to me that I hope I get a chance to follow up on some of the other issues it raises. A huge issue is the misperception that people we can't specifically point at — those who would have been victimized if not for executions — aren't "real people." [UPDATE: I blogged it here.] And as I said, there are deeper ethical issues at play (the article talks about the famous "Jim" hypothetical). There's also the objection that the death penalty just can't be a deterrent, no matter what the data say, because it's applied only rarely and after a long delay, or because murderers don't act rationally. And I still haven't said anything about race.
Oh, and there's the little problem of Justice Stevens's concurrence in the Supreme Court's recent decision on lethal injection, in which he announced that he now believes the death penalty is unconstitutional, in part because it's not a deterrent. Apparently, the meaning of the Constitution depends on which studies the justices choose to cite.
But I'll have to leave all that for later (hopefully!). For now, go ahead and let me know in the comments if I've gone wrong in my thinking about this, or if there's an important angle I've neglected.
UPDATE: Over a hundred responses in the comments section over here.
UPDATE: Thanks for the link, Glenn! And Mom. I guess I've hit the big time, blogospherically speaking.
[Continued here, here, and here.]
* I'm not saying this is the attitude of all conservatives. I could imagine a conservative who sees acts as equivalent to omissions, especially for social issues or foreign policy. Or they might just feel that government is an ineffective agent for changing society. I'm just saying that liberals reject the passive/active distinction -- or, they should reject it in order to have consistent principles underlying their policy views.