Penn Jillette on Donald Trump

Penn Jillette makes an uncommonly nuanced and respectful argument against Donald Trump's run for president during a radio interview (video below):

Thelonious Monk, the great jazz piano player, . . . said, "The genius is the one who is most like himself." And that's what I love about Bob Dylan, Lenny Bruce, Tiny Tim — they were completely like themselves. And Trump, for better or worse, is in that category. I have talked one-on-one with Bob Dylan, and I have talked one-on-one with Trump, and they do not have filters. They speak honestly and from the heart.

Unfortunately, when you move into the political arena, when you're speaking from the heart, if your heart has some really dark, wrong areas, and that comes out too, that becomes very, very unpleasant. When someone who's a comic says something about immigrants in this country, it's in the category of a character; it's in the category of context. But when a person who is telling us — we don't know how seriously he's really taking it, but let's . . . give him the respect of saying he's taking it seriously — when he says that what I'm saying is going to have some policy implications, then all of a sudden, we have to be our better selves. It is perfectly OK for you to be personally a little uncomfortable with certain immigrants. It is not OK for our country to be that way.

So if you say that to your friends, or in the context of a radio show, or just speaking, I will defend that. But if you say, "Now, I'm going to take these prejudices that I have, and say them in your name, in the international arena," I'm going to go, "Oh — baby! If you're going to be our spokesman, you've gotta be better than you are personally. You've gotta be better." And Trump . . . the very honesty that I respect him for so much — if you're going to be president, we can't have that. . . .

When you go out there, you've got to be the best of us. And I mean that on everything. It's the way I feel about capital punishment. People say all the time, "But if your family — these monsters — don't you feel like they should be put to death?" And the answer is: of course I feel that. But as a society, as a culture, we want to be better, you know? What we want out of the United States of America — what we want is to be better than we are individually. I want to be proud of our country because our country is better than me.

You know, I don't want "the guy that I'm going to have a beer with — he's just like me." If the guy is just like me, don't be ____ing president! You know?

And I can talk to Donald Trump really comfortably. He's really smart. He has a lot of interesting things to say. But I want somebody that's one notch up, for president.

What do affirmative action, abortion, and the death penalty have in common, aside from being controversial issues?

My mom, Ann Althouse, writes this after attending a debate about the University of Wisconsin's use of affirmative action:

The students at a university are always the students who were admitted. They feel hurt or outraged if they think the message is that they shouldn't be here. They're here, in the room, and the individuals who did not get in are not here to cry out with corresponding outrage.

It reminds me of debates about abortion. Those who were aborted are never present in the room to express their perspective on the issue. . . .

The difficult thing — and the true moral challenge — is to visualize those who are affected who are not in the room to express pain when you hurt them.

Back in 2008, I wrote:

[W]e tend to care about the harm that's done to specific, knowable people, while we give short shrift to the harm done to "statistical" people -- people about whom we can't say "We know their names," but only "We can calculate that this number of people probably would have done this in an alternate world."

I then quoted from a study by Cass Sunstein and Adrian Vermeule called "Is Capital Punishment Morally Required?" (that link goes to an abstract with a link to a free PDF):

Those subject to capital punishment are real human beings, with their own backgrounds and narratives. Some of them have been subject to multiple forms of unfairness, in the legal process and elsewhere. At least some were wrongly convicted. By contrast, those whose lives are or might be saved by virtue of capital punishment are mere “statistical people.” They are both nameless and faceless, and their deaths are far less likely to be considered in moral deliberations. It is for this reason, perhaps, that the advocates of capital punishment often focus on the heinousness of the (salient) offender, while the abolitionists focus on his or her humanity. We suspect that the discussion would take a different form if the victims of a regime lacking capital punishment were salient too, and the example of police behavior in hostage situations supports the suspicion. . . . But it does raise the possibility that moral intuitions, for many people, are a product of the salience of one set of deaths and the invisibility or speculative nature of another.

Are you thinking enough about the people you can't see or hear? Oh, and this isn't just about "people." Don't forget animals.

Anyone who likes to analyze the world in terms of "privilege" should be especially alert to this problem, since it's a "privilege" to be able to easily ignore someone else's hardship.

UPDATE: More thoughts, from Althouse and Instapundit.

Is the death penalty "racist"?

The New York Times printed an op-ed yesterday with the headline:

Death Penalty, Still Racist and Arbitrary.

The piece begins:

LAST week was the 35th anniversary of the return of the American death penalty. It remains as racist and as random as ever.

Several years after the death penalty was reinstated in 1976, a University of Iowa law professor, David C. Baldus (who died last month), along with two colleagues, published a study examining more than 2,000 homicides that took place in Georgia beginning in 1972. They found that black defendants were 1.7 times more likely to receive the death penalty than white defendants and that murderers of white victims were 4.3 times more likely to be sentenced to death than those who killed blacks.

I don't think there's much question about that latter point. But the biggest concern about whether the death penalty is racist would not seem to be about the race of the homicide victim.

Rather, when people call the death penalty "racist," the suggestion is that a defendant who's black is more likely to be executed than a defendant who's white, if all factors other than race are essentially the same.

Is that true?

The New York Times itself published an article (in 2008) that took a much more balanced and fact-based look at this issue:

About 1,100 people have been executed in the United States in the last three decades. Harris County, Tex., which includes Houston, accounts for more than 100 of those executions. . . .

A new study to be published in The Houston Law Review this fall has found two sorts of racial disparities in the administration of the death penalty there, one commonplace and one surprising.

The unexceptional finding is that defendants who kill whites are more likely to be sentenced to death than those who kill blacks. More than 20 studies around the nation have come to similar conclusions.

But the new study also detected a more straightforward disparity. It found that the race of the defendant by itself plays a major role in explaining who is sentenced to death.

It has never been conclusively proven that, all else being equal, blacks are more likely to be sentenced to death than whites in the three decades since the Supreme Court reinstated the death penalty in 1976. Many experts, including some opposed to the death penalty, have said that evidence of that sort of direct discrimination is spotty and equivocal.

But the author of the new study, Scott Phillips, a professor of sociology and criminology at the University of Denver, found a robust relationship between race and the likelihood of being sentenced to death even after the race of the victim and other factors were held constant.

His statistics have profound implications. For every 100 black defendants and 100 white defendants indicted for capital murder in Harris County, Professor Phillips found that an average of 12 white defendants and 17 black ones would be sent to death row. In other words, Professor Phillips wrote, “five black defendants would be sentenced to the ultimate sanction because of race.”

Scott Durfee, the general counsel for the Harris County district attorney’s office, rejected Professor Phillips’s conclusions and said that district attorneys there had long taken steps to insulate themselves from knowing the race of defendants and victims as they decided whether to seek the death penalty.

“To the extent Professor Phillips indicates otherwise, all we can say is that you would have to look at each individual case,” Mr. Durfee said. “If you do that, I’m fairly sure that you would see that the decision was rational and reasonable.”

Indeed, the raw numbers support Mr. Durfee.

John B. Holmes Jr., the district attorney in the years Professor Phillips studied, 1992 to 1999, asked for the death sentence against 27 percent of the white defendants, 25 percent of the Hispanic defendants and 25 percent of the black defendants.

I agree with Durfee's statement that you'd need to look at the merits of each case. Phillips did purport to do exactly that, as the Times explained:

Professor Phillips said that the numbers suggesting evenhandedness in seeking the death penalty did not tell the whole story. Once the kinds of murders committed by black defendants were taken into consideration — terrible, to be sure, but on average less heinous, less apt to involve vulnerable victims and brutality, and less often committed by an adult — “the bar appears to have been set lower for pursuing death against black defendants,” Professor Phillips concluded.

Professor Phillips wrote about percentages and not particular cases, but his data suggest that black defendants were overrepresented in cases involving shootings during robberies, while white defendants were more likely to have committed murders during rapes and kidnappings and to have beaten, stabbed or choked their victims.

When the nature of the crime is taken into account, Professor Phillips wrote, “the odds of a death trial are 1.75 times higher against black defendants than white defendants.” Harris County juries corrected for that disparity to an extent, so that the odds of a death sentence for black defendants after trial dropped to 1.49.

Jon Sorensen, a professor of justice studies at Prairie View A&M University in Texas, said he was suspicious of Professor Phillips’s methodology.

“It’s bizarre,” Professor Sorensen said. “It starts out with no evidence of racism. Then he controls for stuff.”

Moreover, Professor Sorensen said, Professor Phillips failed to take account of other significant factors, including the socioeconomic status of the victims.

Again, I just don't know see how you could ever draw a firm conclusion about any of this without looking at the specifics of each case. And even if any researcher had time to do that, they'd need to apply their personal opinions to weigh how bad the different crimes were. But there's no reason to trust even the most fastidious and impartial researcher to do this, since they could only make these judgments by looking at a cold, paper record of a case. A judge and jury in each case are uniquely well-positioned to make judgments about whether a defendant is guilty and how bad the defendant's specific actions were. You can never fully step into the judge's or jury's shoes.

As one example, we're told that black defendants are more likely than white defendants to kill during "robberies." That might sound like a relatively drab category of crime, in contrast with the white defendants, who are described in a way that sounds viscerally reprehensible: they "were more likely to have committed murders during rapes and kidnappings and to have beaten, stabbed or choked their victims." But one could easily imagine a robbery being quite brutal. Off-hand, I have no idea if "robberies" are generally worse than, say "kidnappings."

And remember, the severity of a crime is just one of many factors that can be relevant in sentencing. As the Houston Chronicle reported in a 2010 article about another research paper by Phillips:

District Attorney Pat Lykos, who has been in office for little more than a year, declined to comment on Phillips' conclusions about the past administration. She said under her leadership, a victim's race or ethnicity or education level would play no part in determining whether to seek the death penalty against an accused killer.

If the slain victim was single, that also would not play a role in the decision, but if the victim was married, the impact of the death on their family would be considered, Lykos said. If the victim had a criminal record and whether that was considered would depend on the facts surrounding their death, she said.

Factors that are considered in whether to seek the death penalty, Lykos said, include the victim's age and vulnerability, the number of victims killed, the brutality of the offense, whether the accused killer and victim had any prior relationship, the defendant's criminal record and life history, and the effect the crime had on society.

The 2008 article shows that the New York Times is capable of setting a high standard for itself in conveying these nuances about the limits of our ability to make a sweeping judgment about thousands of unique cases. Yesterday's op-ed shows that the Times is willing to let this complexity get simplified and filtered.

The death penalty for selling bad milk?

That's what this teaser on the New York Times homepage* says:

Death Sentences in Chinese Milk Case

A Chinese court sentenced two men to death and a top dairy company executive to life in prison for selling tainted milk products.

Those wacky Chinese! Giving the death penalty over milk!

Now, there are a few minor details that cast a different light on the case, which you have to click the link on the NYT homepage to see. Specifically, the people who were sentenced were part of a conspiracy that "intentionally produced or sold dairy products laced with a toxic chemical called melamine," which killed six children and "caused kidney stones and other ailments in about 300,000 children last year."

I'll bet most people who skim the front-page teaser won't click the link and read the article. They'll go away with a vague impression that death sentences are given out in China for all sorts of silly reasons. So leaving out facts can be a powerful thing.


* Since I posted this, the teaser has dropped off the homepage, but the same text is on the "World" page for the time being.

Reality check on abolishing the death penalty for child rapists who don't kill their victims

I've already blogged the Supreme Court's child-rape decision from earlier this year, Kennedy v. Louisiana, and pointed out how legislatures could evade the Supreme Court's interpretation of the "cruel and unusual punishment" clause of the Eighth Amendment.

That was a fairly academic, procedural question about an emotionally charged issue, particularly since I admitted that my proposed workaround couldn't possibly succeed.

So let's look at the real side of things.

Richard Davis was released from death row in December. He's the first person to avert execution as a result of the Supreme Court decision (aside from Patrick Kennedy himself, the defendant in Kennedy v. Louisiana).

Here are the details, which, as you might guess, aren't too pleasant to read about (via Sentencing Law & Policy):

Davis, a 36-year-old who was on death row for raping a 5-year-old girl, now faces life in prison. ...

A Caddo[, Louisiana] jury last year sentenced Davis to die after convicting him of aggravated rape for repeatedly sexually assaulting the child from October 2004 to January 2005.

The U.S. Supreme Court ruled in June a child rapist cannot be executed, forcing Crichton to resentence Davis. [No, that's not true. The Supreme Court ruled that a child rapist who doesn't cause the victim to die can't be executed. -- Jaltcoh.]

By default, Crichton today sentenced Davis to life in prison at hard labor without the possibility of parole, probation or suspension of sentence.

Child rapists "are, by far, the least popular in prison," Caddo Assistant District Attorney Brady O'Callaghan said Thursday.

"I don't know how well Mr. Davis is going to handle general population."

In 2007, the jury also convicted Davis of one count of indecent behavior with a juvenile for promoting a 16-year-old girl for prostitution in 1996. ...

"I want it to be clear that this man should never be released under any circumstances," the judge said. ...

On several occasions, [Davis] and girlfriend Melissa Ticer sexually assaulted the child, according to testimony during his trial.

They performed sex acts on her, fondled her genital areas and forced her to perform sex acts on the couple.

Testimony showed the child also was drugged and unconscious during some of the sexual encounters.

Ticer admits to assaulting the child but says Davis made her do it, authorities have said.

During Davis' trial, Caddo District Attorney Lea Hall pointed at him and said, "Execute this man. Justice has a sword, and this sword needs to swing today."

To strengthen their appeal for the death penalty, prosecutors touted criminal behavior that includes the molestation of his son as well as the molestation of at least four teenage girls.

Matthew Yglesias made a crucial and related point about the death penalty in general:

[A] lot of discussion of the death penalty occurs weirdly out of context. Executions are inhumane. But inhumane as opposed to what? Executing people is putting an awful lot of power in the government's hands, but an awful lot of power as opposed to what? Capital defendants often suffer from egregiously bad legal representation and the prosecutorial apparatus is all-too-often unscrupulous. But their legal representation is poor compared to whose? There's a lot to worry about ... how the death penalty is administered, but it's entirely of a piece with general worries we should be having with the criminal justice system.

The point being: we have this prolonged, intense debate over whether it's acceptable (either constitutionally or just as a policy matter) to execute child rapists who don't kill their victims. But if you rule out the death penalty for a specific kind of crime, there's inevitably going to be some other result. Why do we debate the death penalty in a vacuum, rarely asking how desirable the alternative is?

I'm pretty sure there are a lot of Americans who vehemently oppose executing a Richard Davis, but who chuckle and quickly move on when they see the prosecutor's vague but unmistakable insinuation that the prison sentence will mean the rapist will become a rape victim. I share their view on the death penalty, as I said in the earlier post. But taking a blase or mocking attitude toward prison rape undercuts the seriousness of one's opposition to the death penalty.

Suicide by court

The New York Times' version of this Associated Press article has an ominous URL:

http://www.nytimes.com/aponline/us/AP-Suicide-By-Court.html

The article itself never uses the phrase "suicide by court," or even the word "suicide." But that's what it's about: death-row inmates in the United States who choose not to contest the death penalty, thus passively committing suicide.

How often has this happened? 131 times since we reinstated the death penalty in 1977. That's 12% of defendants who've been sentenced to death. The most recent such inmate is going to be executed tomorrow.

The article focuses on the ethical anguish of the lawyers:

Attorneys are required to follow the client's wishes or have themselves removed from the case, said Michael Mello, a Vermont Law School professor who teaches ethics and death penalty law.

''Their hands are pretty well tied,'' Mello said. ''These are the cases that haunt you. This is the most hideous of cases.''

That's how Gus Cahill felt when his client, Keith Eugene Wells, told him he wanted to die. Wells was convicted of beating a couple to death in 1990 in Idaho. He went through the mandatory appeals, then decided to waive any remaining legal options and was lethally injected in 1994.

''I really liked Keith,'' said Cahill, a public defender in Boise. ''You're just thinking, 'Oh, my God, I feel so sorry for being part of what Keith wanted to do.'''

It's understandable, of course, that anyone would feel queasy about being helpless to save a human being from death.

But shouldn't this also cheer up criminal defense lawyers, or anyone who's morally opposed to the death penalty?

Dogmatic opposition to the death penalty would seem to only make sense if execution is -- at least for the person executed -- a really bad thing. Not just garden-variety "bad," but truly awful.

Doesn't the fact that 12% of people who receive death sentences actively prevent their lawyers from fighting it suggest that it's not so awful?

Could Kennedy v. Louisiana, the Supreme Court's child rape case, be overruled?

I was talking with _____, who had an idea for a creative response to the Supreme Court's decision in Kennedy v. Louisiana.

As a reminder, Kennedy was the case where the Supreme Court declared it unconstitutional to impose the death penalty on a defendant who's been convicted of raping a child, if the crime didn't result in death.

_____'s idea is about new legislation that could be enacted. The goal would be not to violate the holding in Kennedy, but to test its limits and possibly get it overruled. (I have _____'s permission to use the idea with the anonymous attribution.)

Before I get to the mechanics of how the idea could work, I want to be clear: there are many reasons why it's implausible that this would actually happen. So I don't mean this post to be a serious suggestion to anyone.

On top of that, I have no desire to see it happen. My view is: some people think it's already crossing the line just to execute anyone. Now, even if you don't take that position (i.e. if you support the death penalty), it seems like there should be some line that we can't cross. If we're going to have the death penalty, it seems like a good idea to say: we're not going to kill anyone unless that person killed someone. It's not that I deny that there are terrible people who deserve to die even though they didn't kill anyone; it's that if my government is going to be going around killing people, I want it to be tightly reined in by the clearest, most stringent principles. "An eye for an eye" is pretty clear. "An eye for anything that's arguably in the ballpark of the level of seriousness of an eye" sounds like a frighteningly expansive government power.

With that out of the way, here's the idea:

So, the Kennedy decision was based on various factors, but the main one was "evolving standards of decency" -- in other word's, America's (supposed) consensus on the issue of executing child rapists. According to the Court's majority opinion, a survey of the law in the jurisdictions that do allow the death penalty shows a "national consensus" that is "divided ... but, on balance, ... against it."

Now, it's open to question whether that's remotely accurate. Indeed, we now know that the Court was simply wrong on the facts when it comes to one pesky little jurisdiction: the federal government.

And I tend to cringe when the Supreme Court suddenly appoints itself supreme pollster of the American people's legal principles.

But that's what they said, so let's take it as a given.

Again, the Court looked at the specific statutes from each death-penalty state to discern a national consensus.

Doesn't that mean that if there were new statutes going the other direction, that the Court would have to reconsider?

"Oh, but now that the Court has already decided this case, you couldn't have new legislation going against it. The states can't choose not to obey the Supreme Court."

Well, I'm not talking about violating the Court's decision. Follow me here:

Death-penalty states could work together to draft uniform legislation, which each state would then pass, saying that they'll have the death penalty for child rape -- but with a twist.

Here's the twist: the statute may not be enforced until a sufficient number of states have passed this very legislation.

How many states would need to do this? I don't know -- that would have to be worked out. According to the Kennedy opinion, six states had laws authorizing the death penalty for child rapists. So let's say you had, oh ... 20 states adopting this sort of new legislation. Wouldn't that show an undeniable direction of change (to use the Supreme Court's phrase) of our "standards of decency" in the other direction, i.e. in favor of executing child rapists?

So the picture is this: you'd have state after state adopting this uniform legislation, but without anyone ever using it until they reached some magic number -- whatever number is specified by the law. Then, once that magic number is reached, a defendant could be sentenced to death for raping a child without causing death. This defendant would be very likely to petition the Supreme Court, and the Court would have a very strong basis for granting certiorari (i.e. choosing to hear the case).

The Supreme Court would then be faced with the argument: "You said it's based on evolving standards of decency. And you based this assessment on a survey of the relevant legislation in all states. Now there's new legislation that clearly indicates a sea change across the country. The rationale for Kennedy v. Louisiana no longer exists; therefore, it should be overruled."

Again, do I think this has the slightest chance of happening? No.

Do I want it to happen? Well, it'd be really cool if I could say that one of my blog posts led to a Supreme Court case ... but no.

In theory, though, I don't see why this isn't a wide-open possibility.

If _____ and I are right about that, then what does that say about how the Supreme Court decides its cases?


UPDATE: See the comments section over here for reactions to this post.

Unknown people in the Florida and Michigan primaries and the death penalty debate

Josh Marshall makes a key observation about the controversy over what to do with the delegates from the Florida and Michigan Democratic primaries, from which I want to draw a very attenuated connection to my recent posts about the death penalty:

The Clinton campaign argues that if the delegates from these non-sanctioned primaries are not seated hundreds of thousand of voters in Florida and Michigan will be disenfranchised.

The other side argues that it is wrong to change the rules under which the nomination process after the fact in order to advantage one candidate over another. The latter is an argument I agree with -- but there's no question it lacks the emotive impact of the disenfranchisement argument.

What doesn't get mentioned, however, is this: it was widely reported and understood in both Florida and Michigan that the results of these primaries would not be counted. And based on that knowledge, large numbers of voters in both states simply didn't participate.

If the DNC were now to turn around and decide to make these contests count after all, these non-participating voters would be disenfranchised no less than the people who did turn out would be if the DNC sticks to the rules and doesn't seat any of the delegates. The simple fact is that large numbers of people, acting on accurate knowledge and in good faith, decided that there wasn't a real primary being held in their state on the day in question and on that basis decided not to participate.

He backs it up with statistics from another blog post appropriately titled "Do Florida And Michigan Primaries Really Reflect The Will Of The People? Nope." But we don't need statistics to see that a rational, informed person would have stayed home on primary day since they'd believe their vote wouldn't count. This has nothing to do with whether you agree about the decision not to count the Florida and Michigan delegates; it's just about the fact that people who were told that that would be the case.

Here's the key point. The people who voted are specific and known. We know their exact number, and everyone knows for sure whether they're in that group or not. The people who didn't vote but would have if there had been normal primaries are speculative and statistical. We can only think about them by extrapolating from untaken paths. No one person can definitively claim, "I would have voted, so I was disenfranchised." (I'm sure there are specific people who would make this claim, but there's no way to know if they're telling the truth.)

Now, it would clearly be irrational for our only concern to be whether we're disenfranchising the people in Florida and Michigan who actually did vote, right? We also need to be concerned with the people who choose not vote because they were under the impression that there wasn't a real primary going on in their state. If a different policy -- a policy of counting the states' delegates and announcing this beforehand -- would have caused more people to vote, then we need to think about the alternate universe in which that was the policy and those people really did vote.

The fact that you could find out the names of the people who ended up voting as things happened, while you couldn't say for sure which of the non-voters would have voted if things had been different, does not give any legitimate reason for differentiating between the two groups. They're all citizens -- we shouldn't want to disenfranchise any of them.

OK, so let's follow this reasoning where it leads us ...

[A] great deal of recent work has emphasized the possibility that heuristics and biases can be found in the moral arena, making it possible that deeply felt moral intuitions are a result of errors and confusions. ... Statistical lives and harms are pervasively neglected in policy, in part for cognitive reasons.

In other words, we tend to care about the harm that's done to specific, knowable people, while we give short shrift to the harm done to "statistical" people -- people about whom we can't say "We know their names," but only "We can calculate that this number of people probably would have done this in an alternate world."

The above block quote wasn't talking about elections, though. It was from the paper by Cass Sunstein and Adrian Vermeule that I've been blogging in some of my posts on the death penalty. Here's what they say about the difference between "statistical" (speculative, not specifically known) people and "salient" (specifically known people -- people whose names we know) as it affects the death penalty debate:

Those subject to capital punishment are real human beings, with their own backgrounds and narratives. Some of them have been subject to multiple forms of unfairness, in the legal process and elsewhere. At least some were wrongly convicted. By contrast, those whose lives are or might be saved by virtue of capital punishment are mere “statistical people.” They are both nameless and faceless, and their deaths are far less likely to be considered in moral deliberations. It is for this reason, perhaps, that the advocates of capital punishment often focus on the heinousness of the (salient) offender, while the abolitionists focus on his or her humanity. We suspect that the discussion would take a different form if the victims of a regime lacking capital punishment were salient too, and the example of police behavior in hostage situations supports the suspicion. ... But it does raise the possibility that moral intuitions, for many people, are a product of the salience of one set of deaths and the invisibility or speculative nature of another.

I think instead of calling these people "statistical" or "speculative" -- either of which makes it sound like they're just some figment of an academic's imagination -- we should call them "unknown" people. We don't know exactly who they are -- but that's just a byproduct of our inability to physically observe what-would-have-happened-if-things had-been-done-differently. They're unknown, but they're just as "real" as the people whose names we happen to know.

Granted, that's a lot more clearly true in the case of the primaries than with the death penalty, because the question of who was disenfranchised in Florida and Michigan is certainly less mysterious than whose lives have been saved (if any) by the death penalty. There's a reasonable chance that this blog post will be read by someone in Florida or Michigan who didn't vote in the primaries but will say, "Hey, I see Jac's point: I would have voted if I had thought it would count." But there's no way this blog post is being read by someone who can say, "I see his point: I would have died if it hadn't been for the death penalty's deterrent effect on murder." (As for whether there really is a deterrent effect, I've blogged about that extensively: 1, 2, 3, 4.)

But there's a big difference between your ability to know something on the one hand, and how real something is on the other hand. It seems to me that everyone is as "real" as everyone else, whether or not we happen to know their names so that we can point to them and say: "Ah, these were the exact people who were affected."

In practice, that's not how humans make decisions. We value the people we can actually see over the people we can only hypothesize. But that just shows that humans are imperfect decision-makers.

Bonus law observation: couldn't you use this point to argue for more lenient standing or ripeness requirements for having a justiciable claim against the government?

(Photo by Steve Ford Elliott)

Does the death penalty save lives? (part 3)

In the previous two death-penalty posts (1, 2), I talked about whether it makes sense to think that the death penalty deters people from killing, given how rarely it's actually applied. John Donohue and Justin Wolfers say this is implausible (PDF). As I explained, I actually think it's pretty consistent with human nature.

But most of their attacks on the recent spate of studies showing the death penalty to be a deterrent are empirical: they say the data just don't support the claim. That gets to the other main problem I have with the Donohue and Wolfers paper:

They compare non-death-penalty states with all death-penalty states, and claim that there are no significant differences between those two types of states in how much they deter homicide. But that seems to be a highly distorted picture of the real situation.

Here's the problem: there are some states that have the death penalty but rarely if ever use it. For instance, several death penalty states have had only one execution each in 40 years. As another example, California executed only 10 people in several decades even though it's the most populous state.

I don't know as much as Donohue and Wolfers know about how to put together an impressive-looking statistical chart, but I know it doesn't make sense to lump together those states with states that regularly execute people.

But is there a way around that? Yes — just break down the death-penalty states into further categories based on how much (and how quickly) they use the death penalty. Joanna Shepherd did just that (PDF), and she found a huge difference among the different kinds of death-penalty states.

In a nutshell, the difference is that only the states that apply the death penalty on a regular basis will achieve the deterrent effect. And those are a small minority of states. The death-penalty states that don't use it much actually have the opposite effect: homicide goes up.

As Shepherd puts it: "On average, an execution in the United States deters crime. [But] these averages are powered by a handful of high-execution, high-deterrence states."

So, if she's right, then that's simultaneously (a) pretty embarrassing for most death-penalty states -- they're actually driving up homicide, but (b) a ringing endorsement of the death penalty itself, as long as it's used right. It basically means that most states would be wise to ramp up their use of the death penalty so that it passes the "threshold" level of death sentences and executions that must be crossed before the death penalty becomes effective.

By the way, Shepherd is no death-penalty cheerleader. She says she's "definitely against the death penalty on lots of different grounds." She's just pursuing the data wherever they go, even when they go against her own personal views.

The New York Times highlighted Shepherd's point about the necessary "threshold" for the death penalty to be an effective deterrent:

According to roughly a dozen recent studies, executions save lives. For each inmate put to death, the studies say, 3 to 18 murders are prevented.

The effect is most pronounced, according to some studies, in Texas and other states that execute condemned inmates relatively often and relatively quickly.

This conclusion strikes me as intuitively plausible. But wait a minute -- wasn't I just speculating in a recent post that people who are deciding whether to commit homicide probably realize only that there is the death penalty in their state but are not thinking about the statistical likelihood of being executed? How can I say that, but then turn around and say that the frequency with which a state uses the death penalty does affect people's incentives?

Well, there are good reasons to think people don't run through the whole calculation to figure out the exact percentage of being executed if you're caught. For instance, a Texan might have no idea if the chances are 5% or 1% or what. But at least they know there's a real chance. In many death-penalty states, there isn't even a real chance -- it's basically 0%. If you were living in New Jersey and you knew anything about the death penalty there (before it was recently abolished), you'd know that your state had the-death-penalty-but-not-really: the last execution was in 1963. I find it very plausible that that would negate any deterrent effect, while a state like Texas or Virginia would exert a strong deterrent effect (even beyond what would be rationally justified based on a sober assessment of the actual risk of being executed).

In other words, it seems plausible that there would be some minimal threshold of executions that must be crossed for the death penalty to even register with people as something their state uses at all. But once the state passes that threshold, human nature will cause people to mentally inflate the risk of getting the death penalty.

Back to the studies: I have to give Donohue and Wolfers some credit: they do acknowledge the finding that strong-death-penalty states are the ones with a deterrent effect. But then they utterly dismiss it! They say that if you take Texas — which has executed far more people than any other state -- out of the equation, the deterrent effect pretty much goes away. Well, gee, what direction does that argue for? That certainly seems to mean that the way to deter homicide is to do what Texas does: vigorously apply the death penalty instead of just keeping it on the books without using it. But Donohue and Wolfers somehow see it as noise that's getting in the way of studying the deterrent effect of the death penalty.

The idea that Texas is noise that might be better left out, rather than one of the strongest indicators of the effects of the death penalty, seems like such a blatant mistake that I kept thinking: "Wait, I can't be right about that -- one of the authors is a Yale law professor, and this article was published in the Stanford Law Review. I must be missing something." Well, Cass Sunstein is a University of Chicago law professor, and his article was also published in the Stanford Law Review. And he says it makes no sense to see Texas as noise that creates a deceptive appearance of a deterrent effect:

States having the largest numbers of executions are most likely to deter, and it does not seem to make sense to exclude those states as “outliers.” By way of comparison, imagine a study attempting to determine what characteristics of baseball teams most increase the chance of winning the World Series. Imagine also a criticism of the study ... which complained that data about the New York Yankees should be thrown out, on the ground that the Yankees have won so many times as to be “outliers.” This would be an odd idea, because empiricists must go here the evidence is; in the case of capital punishment, the outliers provide much of the relevant evidence.

For all the surface complexity and nuance of the Donohue and Wolfers paper, they seem to have drastically oversimplified and distorted the situation.

By the way, there have also been two other academic articles specifically devoted to disproving Donohue and Wolfers's claims: 1, 2. (Those links go to the abstracts, but you can download the full PDF for free by clicking "one-click download.")

Again, I'm not really qualified to judge Donohue and Wolfers's study, but from what I can tell, it seems like a very weak rejoinder to the abundance of new research suggesting that the death penalty is indeed a deterrent.

Now, even if you're convinced by all that, I could understand saying that we should err on the side of not actively killing people if the data are even debatable. But I'm not so sure. We're never going to have definitive proof of the death penalty's deterrent effect or lack thereof. From what I can tell, the stronger argument is that it is a deterrent. You can't make policy with perfect knowledge. You can only make the best possible estimate, and act on that.

Time to chill

It just started getting up into the 90s here in Texas -- my long walk home from work was a bit oppressive. And maybe this blog has gotten a bit dry and overheated with the whole death-penalty debate that's been threatening to take over my whole blog. (Don't worry -- I'd never let one issue take over -- that would cause even a great blog to atrophy.)

Actually, the comments over here have been very cool-headed and substantive, complete with scholarly citations! But some of the ones over on this other blog were venturing into typical internet territory.

One comment on my "Should liberals support the death penalty?" post began: "What a stupid argument." Gee, that really makes me want to take the time to keep reading and engage with your counterargument.

Another commenter: "Jac evidently thinks that conservatives are a breed of moral cretins, who routinely rely on empty formalism to justify inaction in the face of suffering or social problems. ... There is something about an election season that makes people want to see the world (and particularly the opposition) through a fun-house mirror. IMO, the observations about liberals/conservatives in Jac's blog reflect just that sort of distortion. The only antidote for that kind of thinking is to get out and about more, and above all, to get out of any university setting."

I pointed out, "I'm not in a 'university setting.' I graduated from law school last year." The commenter responded: "That's not nearly enough time to overcome the deleterious effects of an American university education."

Still another commenter said: "Seems to me that Jac's argument presents a classic caricature of liberals: Liberals believe that [just] because the government can do something, it should do something. ... Jac's mistake is in proposing a utilitarian argument for the death penalty as if it is a moral argument. It's not."

So I'm either a conservative who's unfairly caricaturing liberals, or I'm a liberal who's unfairly caricaturing conservatives. I was trying not to be ideological or caricature anyone, but it's fine with me if people think I didn't succeed in that (though I do think they might want to take another look at what I was really saying).

What's not fine is to say that my argument wasn't "moral" but just "utilitarian." Utilitarianism is a moral theory. You can agree or disagree with it. You can even think it's immoral. But don't say that any argument that factors in the pain or pleasure that might result from certain actions is amoral. (It would be closer to the truth to say that any argument that doesn't do this is amoral!) Disagree with utilitarians all you want, but don't say they don't have moral views.

But I don't want this post to be my official "response" to the response to my death penalty post. I'll have plenty to say in response to the comments later on. (It takes me a while.)

What I want to talk about now is ... cold soup!

And pasta primavera!

Those are how I intend to make it through the Texas summer: with as many differents kinds of cold soup and non-creamy pasta primavera as I can find or think of.

I've been teaching myself to cook in the last few months. I've gone back and forth on whether to blog any of that. On one hand, it's something I'm really interested in, but on the other hand, I'm not really at the point where I have much business telling other people how to cook. 

But I'll start small, with a very easy cold soup from Deborah Madison's Vegetarian Cooking for Everyone (which has changed my life):

Cucumber yogurt soup. You should probably get the biggest container of plain yogurt they have at the store for this one. Pour ... a lot of it ... into a big bowl that you can keep in the fridge. (Since this is pretty much the base of the soup, obviously use an amount that corresponds to how much soup you want to make.) Thin it out with a bit of milk. Chop up some fresh parsley, mint, and green onions (she uses garlic instead of green onions, but the latter seem more fitting to me), and mix them in. Peel 2 cucumbers (or just 1 if you're making a small portion), halve them horizontally and vertically, scrape out the seeds, dice them, and mix them into the soup. (She says to grate the cucumbers with a grater -- seems overly fussy to me, and I like some texture to my soup anyway.)

Top it off with those ingredients that are so dependable at freshening up a dish at the end: olive oil (not very much), a squeeze of lemon, and salt & pepper. I also like a splash of white-wine vinegar (I always like things a bit on the sour side). Then chill the whole thing in the fridge.

If you want to know the measurements, buy the book! I rarely use the measurements from recipes -- I usually just use whatever seems "about right" -- so I'm not especially interested in putting them on my blog.

One of the many great things about Deborah Madison's book is that she's constantly suggesting lots of little variations, add-ons, and contexts for her recipes -- unlike some recipe books, which seem to want each recipe to be a perfect, pristine island. In this case, she suggests adding almonds -- which, for me, makes the soup. I stir in a bunch of sliced almonds, and then garnish it at the end with more almonds as well as a few extra mint leaves. Adds some unexpected but unobtrusive flavor, plus protein.

I had some this evening to cool down from the walk back from work, with a big glass of fresh-squeezed orange juice with a twist of lime -- great combination.

The next cold soup on my list is gazpacho. I've taken a shot at it before, but this time I really want to perfect it, so that it becomes an old stand-by for me, and then explore some wild variations. Like watermelon! I got that from a Tastespotting search, which revealed lots of exotic gazpachos -- including a white one, which is certainly challenging my previously held notions of what gazpacho is.

I also found this complaint on one of the other gazpacho blog posts:

Chilled soups were a tough sell for Patrick (as they seem to be for many men).

I know she doesn't specify whether she believes men just naturally have different palates or whether it's a conscious desire to avoid associating oneself with anything as light and delicate as cold soup. But the latter possibility did get me thinking about the total sheer effort, throughout the population, that's put into trying to make sure people don't step outside their proper gender boundaries. I'd never even thought of cold soup as having any gender significance, but now I feel like I've been transgressive.

I feel sorry for people who waste a single minute of their day worrying about how to obey some imaginary set of gender rules. How incredibly unsexy to worry about how well you're following the rules, and what a staggering waste of time and energy that could instead be directed toward actually enjoying life.

UPDATE: The commenters over here are riffing on the gendered food theme.

Does the death penalty save lives? (part 2)

To continue the discussion of whether the death penalty is really a deterrent (as some new research has suggested), but to quote someone who probably wasn't thinking about the death penalty at the time:

Researchers have discovered that when people find it easy to imagine an event, they overestimate the likelihood that it will actually occur.

That's from Daniel Gilbert's excellent book Stumbling on Happiness.

We're more inclined to do this — to overestimate the likelihood of easily imaginable events — with good things than with bad things. A study of college students showed that their beliefs about how likely it was for certain things to happen to them showed that their beliefs were skewed in the direction of the positive. So, for instance, they tended to think it was likely that they'd have a gifted child, but not so likely that they'd have a heart attack.*

But just because we're more inclined to do this with the good doesn't mean we don't also do it with the bad. And indeed, we do.

You're going to a party, and you imagine you'll make some spectacularly buffoonish faux pas when you get there. To use Gilbert's example, everyone else will show up with a nice gift for the host, but you didn't realize you were supposed to bring anything. You'll knock over a whole table of elaborately arranged food and drinks. You'll put your foot in your mouth when you're just trying to make small talk. It's not that you think any of these things are likely to happen. But you're still thinking about it, because you can't get these vivid images out of your head.

To use another of Gilbert's examples, when you go to the doctor, even if you rationally believe you're in good health and don't have any troubling symptoms of anything, you're not just thinking: "Well, it's highly probable that things are fine, so I have nothing to worry about." No, you can't stop thinking about the tiny chance that the doctor's going to tell you you have cancer, or you have six months to live, or you have some rare disease that they've never heard of before. Again, this doesn't make you dumb or irrational. You might know it's not very likely. But you're still going to think about it, because the scenarios are readily available to your brain.

"These dire images make us feel dreadful — quite literally." But, as Gilbert notes, there are reasons why our minds do this. You might be softening the blow in case the bad thing ends up happening. Then at least it won't take you by surprise.

More relevant to the death-penalty issue, though, is that "forecasts are 'fearcasts.'" If you make yourself aware of the worst possible outcome in some situation, this can be a way of motivating yourself to try to avoid that outcome.

You're worrying about the chance of knocking something over at the party, even way out of proportion with the chances that that will happen ... so you make sure to look where you're going. You're worrying about the chances your doctor will tell you you have some terrible disease at your next appointment, even way out of proportion with the chances that will happen ... so you change little things about your daily routine like exercising more and eating healthier foods.

In short, overestimating how likely it is for something terrible to happen to you isn't just "irrational" — it could be a good (albeit unintended) strategy to make yourself be more careful by visualizing the worst possible consequences of bad choices.

And that seems to be exactly what's going on with the person who decides not to kill because they can't stop thinking about the vivid image of getting a lethal injection, or just sitting in court and hearing the judge pronounce a death sentence. They might be overinflating the probability that this will occur. But if it stops them from killing someone, then who cares that they got the probability wrong?

Now, do Donohue and Wolfers, or Steven Levitt, cite any of the psychological research backing up these human tendencies? Do they even acknowledge the possibility that our minds might work this way? No. But as I blogged the other day, that doesn't stop them from claiming, in academic articles surrounded by impressive-looking data, that the death penalty is not a deterrent because the death penalty is so rarely applied that it can't rationally deter people. (Wolfers was also quoted making essentially the same point in the New York Times.)

Levitt in particular is usually willing to explore the possibility that people's minds systematically work in irrational or unrealistic ways. I already pointed out that he's willing to say that people overestimate small probabilities like terrorist attacks — but he assumes this does not happen with people contemplating the probability that they'd receive a death sentence for killing someone. Levitt was also perfectly happy to describe deeply irrational behavior in his book Freakonomics: parents who know they'll be fined for showing up late to pick their kids up from day care are more likely to show up late than those who don't get penalized — utterly backwards from what you'd expect if people always just neatly calculated the likely costs and benefits of each possible course of action and then did whatever would give them the best outcome.

Yet when it comes to the death penalty, Levitt assumes that people can't be motivated by the fear of death (of all things to dismiss the potential disincentive value of!), as long as a careful reading of the statistics shows that death sentences are rare among all murder cases.

Does he think murderers are more rational than most people? I doubt it. More likely, he has different standards of intellectual rigor for an academic study than an international phenomenon and New York Times best-seller. It's just odd that the intellectual standards are higher for the smash hit than for the academic study.

I still haven't delivered on my promise to explain my other problem with the Donohue & Wolfers study. I'll get to that soon, so stay tuned... [UPDATE: Here it is.]

* Actually, the way Gilbert summarizes this study leaves me wondering whether they really were inaccurate in estimating the likelihood of these things. He says people thought it was more likely for the good things to happen than the bad things, but that doesn't tell you how accurate those estimates are. Also, there's the perennial problem of announcing a sweeping conclusion about human nature based on studying college students. Aren't college students actually better off than average (most people don't have college degrees), so might it not be reasonable for them to think they'll do better than average in all sorts of areas of life? But these quibbles aside, the basic point seems pretty convincing.

Does the death penalty save lives? (part 1)

A few days ago, I argued that liberals should support the death penalty because it saves innocent people's lives by deterring murder. But that all hinged on a new crop of empirical studies. That means a lot is riding on the supposedly improved statistical methods. If those methods don't hold up, the argument doesn't hold up. So why should we believe the studies?

First, I think it's worth noting that many death-penalty opponents have no qualms about making the most elementary statistical blunders. They often flatly assert that the death penalty is not a deterrent because the states that have the death penalty have more homicide than non-death-penalty states.

They don't point out that the four-year nationwide abolition of the death penalty in the United States was correlated with skyrocketing homicides (see the second chart in this blog post). Now, that doesn't prove that abolishing the death penalty increased homicides, but by the same token, the higher homicide rate in death-penalty states doesn't prove that the death penalty increases homicides.

So there should be something more than sheer correlation. It looked to me like the new studies went beyond that: the write-up in the New York Times mentioned "multiple regression analysis" by "sophisticated econometricians" and so on.

But John Donohue and Justin Wolfers wrote a law review article that purported to demolish these studies (PDF). (Thanks to LemmusLemmus for bringing this to my attention.)

Unfortunately, I can't understand 90% of it. So I was going to skip that as blog fodder. I prefer to blog about things that I have some comprehension of.

Well, even though I have no idea if Donohue and Wolfers's analyses of "instrumental variables estimates" and "panel data methods" are right or wrong, I was able to grasp a couple of their points. And neither of those points gave me much confidence that they got things right in the parts I don't understand. Here's the first one:

Donohue and Wolfers say it's just not plausible that the death penalty deters crime because it poses such a slight risk that you'd be irrational to be deterred by it.

Similarly, Steven Levitt (of Freakonomics fame) says that "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." The suggestion is that it's implausible to think that "criminals" would be deterred by the death penalty, since the death penalty is so rarely applied that the risk, from the point of view of someone deciding whether to kill, is negligible. (Scare quotes around "criminals" because that's a really poor word choice. We're not talking about some distinct group of marauding ax murderers. We're talking about people who might decide to kill, or might end up being deterred and end up looking like pretty normal citizens, not "criminals.")

Well, wait a minute. Why is it implausible that the death penalty would deter out of proportion with the actual likelihood of being executed? Wouldn't the really implausible thing be to say that people are perfectly rational in how they respond to death-penalty statistics — and not just perfectly rational, but perfectly well-informed?

A couple examples: Most people overreact to the risk of being killed by a terrorist attack. I myself would be hugely deterred from traveling to Israel, even though I know it's irrational for this to be such a big factor in my decision. I've never been to Israel, but I do see lots of images of gruesome terrorist attacks over there. I'm not calculating the actual likelihood that it would happen to me -- it's much less rational than that. I'm instinctively focusing on the vivid images I've seen, rather than the very high likelihood that I'd have a normal, pleasant vacation. Behavioral economists refer to this as the "availability heuristic" (PDF).

By the way, here's something odd. One person who agrees with me about terrorist attacks is Steven Levitt: "Humans tend to overestimate small probabilities, so the fear generated by an act of terrorism is greatly disproportionate to the actual risk." Well, not only is Levitt the source of the above quote expressing skepticism about deterrence, but he also wrote an article in which he directly argued that the death penalty isn't a deterrent because it's too rarely and slowly applied to affect a rational person (pp. 319-20 in this PDF).

Why would Levitt think the human mind "overestimates small probabilities" when it comes to terrorist attacks, but not executions?

Another example: flying in a plane. I fly a lot, but I'm scared every time I do it because I'm imagining that the plane could go haywire, crash, and kill me. I'm much less likely to think about getting into a car crash, even though I'm statistically more likely to die in a car than on a plane. I'm not looking up statistics or doing calculations — I'm just thinking of the most vivid scenario that jumps out at me. To drive home how overpowering a deterrent the fear of a plane crash can be: Hillary Clinton's top spokesperson, Howard Wolfson, never flies, which, as the great blogger Josh Marshall points out, is "an astonishing feat given the nature of modern campaigning." (Marshall also talks about his own fear of flying and hints that it might have altered the course of his career.)

I can't believe that those who are weighing whether to commit homicide are dramatically more rational than me (or Wolfson). In fact, they're probably less rational, since murder itself is such an irrational gamble to begin with.

But just because they're irrational in these specific ways doesn't mean they're ignorant of the death penalty's very existence, which seems to be the assumption made by those who say the death penalty can't be a deterrent because it's so rarely applied. If you're in a position where you're considering whether to kill someone, you probably know whether your state has the death penalty. That doesn't mean you sit around perusing the relevant statistics; it could just mean you've seen headlines, or maybe even heard stories about people you know.

I'm largely riffing on Cass Sunstein and Adrian Vermeule's argument about "bounded rationality":

[S]uppose that like most people, criminals are boundedly rational, assessing probabilities with the aid of heuristics. If executions are highly salient and cognitively available, some prospective murderers will overestimate their likelihood, and will be deterred as a result. Other prospective murderers will not pay much attention to the fact that execution is unlikely, focusing instead on the badness of the outcome (execution) rather than its low probability. Few murderers are likely to assess the deterrent signal by multiplying the harm of execution against its likelihood. If this is so, then the deterrent signal will be larger than might be suggested by the product of that multiplication.

I always find it surprising that the death penalty is the one punishment about which people say that it's too rarely applied to motivate people to avoid getting it applied to them. It seems to me that it's the one punishment that would vividly stand out in people's minds as something to be avoided, much more so than a relatively abstract distinction like getting 20 years vs. 30 years in prison. Of course, that distinction is anything but abstract for the person who actually has to serve the sentence, but the relevant question is how the prospect of these punishments is likely to affect someone who hasn't gone through them yet. Qualitative differences (death vs. prison) seem a lot more likely to make an impression than quantitative differences (20 years vs. 30).

Ironically, death penalty opponents themselves may be contributing to the deterrent effect by drawing attention to how horrifying the death penalty is, especially if they focus on the vivid details of executions.

One last thing: everything I've said in this post has been assuming that it really would be irrational to be deterred by the death penalty. But that's far from obvious. As Richard Posner put it: "even a 1 percent or one-half of 1 percent probability of death is hardly trivial; most people would pay a substantial amount of money to eliminate such a probability."

I said I have a couple problems with Donohue and Wolfers's attack on the deterrent studies — that's one of them. The other one is that they ignore the very data that most clearly show deterrence, which seems to throw off their whole metastudy. I'll explain why soon.

UPDATE: See the comments for an enormous amount of material criticizing the Donohue & Wolfers article. Thank you, Dudley Sharp.

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.