Monday, May 12, 2008

Should liberals support the death penalty?

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.

14 comments:

Richard Lawrence Cohen said...

Are the researchers speculating on a cause, or just pointing out a correlation? Maybe murders go down and executions go up for the same reason: a climate favoring stricter law enforcement in the country.

In the articles you link to, I don't find mention of a possible psychological mechanism for deterrence. Are the researchers implying that people refrain from murder because of fear of the death penalty? I don't think that would work with people who kill in rage, or for business reasons (e.g. drugs), or from psychopathic or sociopathic motives. What's left? People who inadvertently murder in the course of sloppily conducted felonies. But isn't felony murder less likely to result in a death sentence than murders that are considered more heinous and premeditated?

If they're postulating an attitude of,"I'd better not kill him, because I'll be executed," the researchers are projecting the mentality of Ivy League students onto...the opposite.

A more believable cause is that if a murderer is executed, the lives of his later victims will be saved. But that's almost equally true if he's put in jail for life.

John Althouse Cohen said...

Are the researchers speculating on a cause, or just pointing out a correlation?

I'm sure the researchers have all taken Statistics 101. They have tried to control for other factors. They're investigating causation, not just correlation.

The new, emerging consensus doesn't seem to be based on conflating correlation with causation. It seems more like the opposite: as the research is becoming more sophisticated, more and more people are converging on the conclusion that the death penalty saves lives.

In contrast, many death penalty opponents are fond of citing sheer correlation to support the notion that the death penalty isn't a deterrent: murder rates are lower in states that don't have the death penalty. That, of course, doesn't settle the question.

In the articles you link to, I don't find mention of a possible psychological mechanism for deterrence.

The Sunstein article gets into that. I'll have to read it more closely, and then I hope to do a separate post about this point.

I can't get into the whole debate now, but as a preview, I can tell you I think the data should trump wild speculation about what people's motivations might be. The idea that something ends up operating as an incentive as if people were rational does not depend on an assumption that people actually are perfectly rational.

Khornet said...

Execution certainly deters the executed. In any case, there are moral justifications for capital punishment. The punishment should fit the crime. Some crimes merit death. Doesn't mean we have to like it. I invite you to read
http://www.intellectualconservative.com/article2838.html

For a take on more than the statistic/utilitarian aspects. I really think there is a case for capital punishment completely aside from what it 'accomplishes'.

LemmusLemmus said...

I agree that the death penalty should be used if it saves lifes. (I am not a liberal, though.)

However, John Donohue and Justin Wolfers have published a pretty devastating critique of the research on the basis of which Sunstein and Vermeule argue that the death penalty deters homicide. In short, Donohue and Wolfers show that the results are veeery shaky: Play around with the statistical specification a bit, and they disappear.

My conclusion from reading this and other papers is that if there is an effect, it is very close to zero.

Anonymous said...

Mmmm, liberals believe that they are responsible for what the government allows to happen, not just what they actively do...

Fair enough, but how do you square that with Obama's declaration that we should withdraw from iraq even if the result of it is genocide?

Or, for that matter, with liberals claim that we shouldn't waterboard or torture? (Yes, i know some people say waterboarding is torture. i respectfully disagree--its not fun, but its not torture.) Of course it is claimed that it doesn't work, but people who, you know, actually do this sort of thing have said it does, as in they got actionable intelligence that they acted on. i mean, anyone who goes through the case law can find clear cases of out-and-out torture that nonetheles produced tangible results, such as finding a murder weapon, or a body, exactly where the tortured person said it would be. So don't tell me that they will just blow smoke: you can ask for and recieve actionable information. So, given that it works, again liberals want us to stand aside and do nothing to make KSM tell you when the next 9-11 is.

Indeed, the liberal position is not to do very much at all to prevent terrorism. Or for that matter, mass murder. Every day the president of Iran keeps telling us how he will wipe Isreal off the map, while reaching for a nuclear eraser. Liberals are repeating the exact same mistake we made before WWII, where we read Mein Kampf and said, "sure, he says it, but he can't really mean that." Thus, inaction.

Really, the claim that this is the division line between liberals and conservatives is simply wrong. For instance, you would be hard pressed to find a better example of a conservative than ronald reagan. And what was reagan's mantra? "Government is not the solution. Government is the problem." That's hardly a belief that the government should stay out of things even when it can do. And really, across the board i don't see conservatives saying what you imagine they say. indeed, it is liberals who often tell the government to butt out, for instance, on abortion.

And that gets to another point. Liberals often tell the government to stand down, EVEN IF GOVERNMENT CAN EFFECTIVELY ACT. So, for instance, liberals are more likely to support an extension of free speech rights to porn. And how often does the left say that what two consenting adults do in the bedroom is no one's business but their own? its not because regulation would be ineffective--its because the left believes it would be just plain wrong.

So this inaction/action dychotomy you set up between liberals and conservatives just doesn't line up with reality. Liberals don't support all effective action to solve all problems, and conservatives don't oppose effective action in all or even most cases--they usually diagree on whether it is effective or not.

As for the people questioning whether the death penalty works, the claim that it doesn't is always just plain silly. First, if you kill a murderer, HE won't kill again. Second, if the death penalty doesn't deter, then NOTHING deters. But every parent knows that punishment deters and it is silly to say that the ultimate punishment is not simultaneously the ultimate deterrant. Sheesh.

And there is some circularity to the liberals' argument on this issue. Yes, it is less a deterrant than it used to be, but that is after decades of the left doing all it could to take the teeth out of the death penalty. And at least one of the opinions in the lethal injection case before the surpreme court recently dinged the left for arguing that the death penalty just costs so much, by pointing out that the same opponents of the penalty are the REASON why it costs so much with their endless litigation.

But riddle me this, here. Say you put a man in prison for the rest of his life. Then he kills a guard. What do you do with him? Tell him he will now serve two life sentences? If you eliminate the death penalty, there really isn't much more you can do to him. you can take away some privileges, maybe even put him in solitary for the rest of his life(oh, no, wait that is cruel and unusual, right?). But really anything you do is likely to be seen as a slap on the wrist, both to the family of the murdered guard, and to the other prisoners. so the only thing you can do, is kill him.

Finally, to those anti-death penalty types, if you cannot boldly declare that you think it was wrong to hang the nazis at nuremborg, then you are a hypocrite. And that means most of you who oppose the death penalty. Because if you support killing the nazi's, but claim you oppose the death penalty, you're like that woman in that old Groucho Marx joke.

All me to explain: it goes like this. Groucho is at a party and asks a rich socialite if she would sleep with a man for a million dollars. After a few moments, the woman says she would. So then Marx says, "okay, how about for five dollars?"

The woman is horrified and says, "what kind of woman do you think I am?"

And he replies, "I already know what kind of woman you are. We're just negotiating a price."

Ditto if you support killing the nazis at nuremborg but claim you nonetheless oppose the death penalty. You aren't really opposed to the death penalty, you are just hagglin over the "price"--as in when the behavior is heinous enough to justify it.

Stephen J. said...

"Finally, to those anti-death penalty types, if you cannot boldly declare that you think it was wrong to hang the nazis at nuremborg, then you are a hypocrite. And that means most of you who oppose the death penalty."

I appreciate the moral force of this point, but I do feel obliged to point out that you can make a good case for there being a qualitative difference between killing agents of a foreign power who are active threats to your state, and executing citizens of your own state based on the government's decision that those citizens present more threat than value.

A number of capital punishment abolitionists argue from the position that the State must never be granted the legal power to justly cause the death of any of its citizens, on the grounds that once this power becomes available its abuse, either from malice or error, becomes inevitable simply by weight of accumulating probability -- or in other words, if you legalize the death penalty sooner or later someone innocent will be killed wrongly by their own government.

To turn your own example around on you, if you cannot stand up and boldly say that you willingly accept that sooner or later an innocent man will die at the hands of the very agency whose only duty is to defend his life, and consider that a worthwhile price for the supposed pragmatic benefits of the policy (reduced cost, presumed deterrence, fitter punishments for crime), then you are a hypocrite.

"Would you accept the government killing one innocent man so twenty-five savage murderers could die?"
"You know, yes. Yes I would."
"Okay, would you accept the government killing a thousand innocent men so those murderers could die?"
"Certainly not! What kind of man do you think I am?"
"I already know what kind of man you are. Now we're just haggling over price."

John Althouse Cohen said...

LemmusLemmus: Thanks so much for pointing out that article. Indeed, if they're correct, then that largely undermines my and Sunstein's argument. OTOH, Sunstein points out that you can at least accept his argument if you frame it as "If we knew the death penalty were a deterrent...," and the same applies to my argument.

Also, I have a twofold problem with Donohue's article (haven't read the whole thing yet, of course). First, I don't understand much of it. Second, the part I do understand is a bad argument.

Anyway, I intend to read up on the methodologies of the studies finding that it's a deterrent -- including Sunstein's own comments on that -- and do a later post about it.

Anonymous: I will post about this in the future. You should read the footnote.

LemmusLemmus said...

JAC,

yes, it's pretty technical. Justin Wolfers had a summary of the findings at the Freakonomics blog, but I couldn't google it; otherwise I would have posted it.

Anon,

"As for the people questioning whether the death penalty works, the claim that it doesn't is always just plain silly. First, if you kill a murderer, HE won't kill again. Second, if the death penalty doesn't deter, then NOTHING deters. But every parent knows that punishment deters and it is silly to say that the ultimate punishment is not simultaneously the ultimate deterrant. Sheesh."

As for your first point, strictly speaking, that's not deterrence, that's incapacitation. More to the point, it is hard to believe that some people who were put to death would not have killed again if they had got out after, say, 20 years. But the question is always what the net effect is. Note in this respect that there are some people who argue that there is a "brutalization effect" of the state killing citizens - and they even presented evidence in favour of that view. (That's typical of this research area: Sometimes the results go like this, sometimes like that...) It is entirely possible that all three are operating at the same time and cancel each other out.

As for your second point, the question is not whether the death penalty deters - it certainly does - but whether it deters more than alternative punishments, such as 20 years in prison. (This research never compares death penalty states with states in which homicide is legal, because there are none of the latter.) If you think about it, it wouldn't be surprising if it didn't: If you think you're likely to go to prison for 20 years, you're unlikely to do it. Conversely, if you care so little about your present life as to accept a realistic probability of that happening, it might not make much of a difference whether it's the death penalty instead. If people don't think about the consequences of their actions, well, then no deterrence can work.

John Althouse Cohen said...

LemmusLemmus: I've skimmed through the whole Donohue article. Am I missing something, or do they utterly fail to take into account the fact that some death penalty states are much more vigorous in applying the death penalty than others? Some states have the death penalty on the books but barely use it.

That would seem to put that study at a huge disadvantage with something like this one, which finds a deterrent effect that's specific to the death penalty states that apply it vigorously.

BTW, here's that Freakonomics post you were looking for, though it's by Levitt. He makes the same mistake that the Donohue/Wolfers article makes: "economists who argue that the death penalty works are put in the uncomfortable position of having to argue that criminals are irrationally overreacting when they are deterred by it." He's implying that this is implausible -- hence, it should make economists "uncomfortable." Well, so "criminals" (really poor word choice, since they're not criminals if they end up being deterred!) irrationally overreact to the prospect of being killed -- so what?! I would expect them to do so, just as people overreact to the risk of being killed by a terrorist attack. I myself would be hugely deterred from traveling to Israel because of the terrorism problem there, even though I know that this is an irrational overreaction to the vivid images of terrorism I see in the news.

I plan to blog some of these points in a follow-up at some point, so let me know if I've gone astray here.

LemmusLemmus said...

JAC,

no, that wasn't the blogpost I meant. (That one I found, too.)

Levitt's comment you criticize is really twofold:

a) Economists who argue that the death penalty "works" in America are put in an "uncomfortable position" - that's correct because economists usually start from the assumption that humans are rational (don't overreact, for example), so to argue that the death penalty works in the US, they have to abandon their standard assumptions.

b) He sort of implies that's an argument against the death penalty working in the US. I agree with you that it's entirely possible that humans overreact to a threat.

The way I remember the article, no, Donohue and Wolfers don't ignore the fact that different states use the death penalty differently. (Note, however, that that's one plausible specification: It might well be that it's the existence of the death penalty per se that counts - potential criminals might overreact. Of course, if you test for this, you'd also want to test for rates and frequencies of executions.) But it's been a while that I've read the article (I know I found it pretty convincing at the time) and I don't have the time to re-read it right now, so I can't answer in any detail or with any confidence. I might get back to you on this either in a comment on this post or one of the future posts you're planning.

Sorry, that's the best I can do right now.

John Althouse Cohen said...

Economists who argue that the death penalty "works" in America are put in an "uncomfortable position" - that's correct because economists usually start from the assumption that humans are rational (don't overreact, for example), so to argue that the death penalty works in the US, they have to abandon their standard assumptions.

That's true for economists who assume everyone is rational. Well, no it's true if you think every is rational and informed. Why they'd assume that people deciding whether to kill are well-informed about death penalty statistics is beyond me.

Anyway, Levitt isn't exactly the type to assume people are rational, is he? I mean, he wrote in Freakonomics that parents are more likely to show up late to pick up their children from day care if there is a late fee.

Seems like Sunstein has the better end of the argument in endorsing "bounded rationality." I'll be posting on this point in the future.

The way I remember the article, no, Donohue and Wolfers don't ignore the fact that different states use the death penalty differently.

Seems to me that they bring this point up, but only to criticize other researchers for taking it into account! They think it's wrong to focus on the states that vigorously apply the death penalty. That seems like a fatal flaw in their study.

LemmusLemmus said...

JAC,

I have now re-read the study. They discuss models taking into account how vigorously the death penalty is applied from p. 810 onwards. What their position on this is is really of little interest to me; what's important is that they show that these results are extremely fragile.

"That's true for economists who assume everyone is rational. Well, no it's true if you think every is rational and informed. Why they'd assume that people deciding whether to kill are well-informed about death penalty statistics is beyond me."

Some definitions of rational - and boy, there are many - would include "perfectly informed". I would think that although most potential murderers don't have exact statistical information on executions, most have a rough idea about how common they are in their state. Also, your argument seems to contradict your earlier statement that the vigor with which states apply the death penalty should be taken into account.

John Althouse Cohen said...

Also, your argument seems to contradict your earlier statement that the vigor with which states apply the death penalty should be taken into account.

I think there's a way to resolve this apparent contradiction -- I'll post about this soon.

Anonymous said...

People say "jail for life" as if that solves the problem of the murderer. What it does is put him into an arena where he has nothing to lose, and so is a greater danger to correctional officers and his fellow inmates. You could "pelicanize" him for the safety of others, but that option isn't very popular either.
ex-officer