If people are bad at deciding what's best for themselves, is government the solution?

Ann Althouse (my mom) sums up Cass Sunstein's review of a book called Against Autonomy: Justifying Coercive Paternalism, by Sarah Conly:

Sunstein refers to social science research that shows people actually aren't very good at making decisions for themselves. We have "present bias" (and don't pay enough attention to the future), we're bad at assessing probability, and we're "unrealistically optimistic."

Sunstein writes:

Many Americans abhor paternalism. They think that people should be able to go their own way, even if they end up in a ditch. When they run risks, even foolish ones, it isn’t anybody’s business that they do. In this respect, a significant strand in American culture appears to endorse the central argument of John Stuart Mill’s On Liberty. In his great essay, Mill insisted that as a general rule, government cannot legitimately coerce people if its only goal is to protect people from themselves. ...

Until now, we have lacked a serious philosophical discussion of whether and how recent behavioral findings undermine Mill’s harm principle and thus open the way toward paternalism. Sarah Conly’s illuminating book Against Autonomy provides such a discussion. Her starting point is that in light of the recent findings, we should be able to agree that Mill was quite wrong about the competence of human beings as choosers. “We are too fat, we are too much in debt, and we save too little for the future.” With that claim in mind, Conly insists that coercion should not be ruled out of bounds....

Conly insists that mandates and bans can be much more effective than mere nudges. If the benefits justify the costs, she is willing to eliminate freedom of choice, not to prevent people from obtaining their own goals but to ensure that they do so.

Sunstein has several good objections to this theory:

Conly is right to insist that no democratic government can or should live entirely within Mill’s strictures. But in my view, she underestimates the possibility that once all benefits and all costs are considered, we will generally be drawn to approaches that preserve freedom of choice. One reason involves the bluntness of coercive paternalism and the sheer diversity of people’s tastes and situations. Some of us care a great deal about the future, while others focus intensely on today and tomorrow. This difference may make perfect sense in light not of some bias toward the present, but of people’s different economic situations, ages, and valuations. Some people eat a lot more than others, and the reason may not be an absence of willpower or a neglect of long-term goals, but sheer enjoyment of food. Our ends are hardly limited to longevity and health; our short-term goals are a large part of what makes life worth living.

Conly favors a paternalism of means, but the line between means and ends can be fuzzy, and there is a risk that well-motivated efforts to promote people’s ends will end up mischaracterizing them.... [M]eans-focused paternalists may be badly mistaken about people’s goals. Those who delay dieting may not be failing to promote their ends; they might simply care more about good meals than about losing weight.

Freedom of choice is an important safeguard against the potential mistakes of even the most well-motivated officials.... Officials may well be subject to the same kinds of errors that concern Conly in the first place.

I see at least two major problems with Sarah Conly's line of reasoning — that we're bad at making rational decisions in our personal lives, so government should remedy this problem through coercive regulations.

Of course, people are often irrational — they act against their own best interests. We don't need social science research to know that, though the research is worthwhile for pinpointing exactly how we're irrational.

But it doesn't follow logically that government regulations are the solution.

Problem 1: We're all just a bunch of flawed people. If people are irrational, then laws — written by politicians who are up for reelection, enforced by police officers, and interpreted by judges who are possibly biased and definitely busy — might also be irrational. Cass Sunstein makes a similar point above, but I'd go further and say government is often more irrational than individuals: even if regulators are rational, it often serves their interests to regulate in a way that doesn't serve yours, possibly because they're beholden to lobbyists. Meanwhile, the public has a hard time holding government accountable because it's often not obvious how regulations eventually lead to bad consequences.

Government isn't an all-purpose social-utility machine just waiting to help us make better decisions, if only we'd be willing to give up our stubborn adherence to the principle of individual autonomy. Even if we were to set aside all our cherished notions about how liberty is intrinsically good, it would still make sense to be skeptical of whether regulators know or care about the full consequences of their regulations.

Problem 2: If helping people involves insulating them from the natural consequences of their actions, this could "nudge" them to be less effective at rational thinking. Being free to make mistakes, and suffering the consequences as a direct result, can help you learn to do better in the future.

And what one person considers a mistake, someone else might see as a useful opportunity. The other day I blogged Evgeny Morozov's critique of "smart" kitchens gadgets:

To grasp the intellectual poverty that awaits us in a smart world, look no further than recent blueprints for a "smart kitchen"—an odd but persistent goal of today's computer scientists, most recently in designs from the University of Washington and Kyoto Sangyo University in Japan.

Once we step into this magic space, we are surrounded by video cameras that recognize whatever ingredients we hold in our hands. Tiny countertop robots inform us that, say, arugula doesn't go with boiled carrots or that lemon grass tastes awful with chocolate milk. This kitchen might be smart, but it's also a place where every mistake, every deviation from the master plan, is frowned upon. It's a world that looks more like a Taylorist factory than a place for culinary innovation. Rest assured that lasagna and sushi weren't invented by a committee armed with formulas or with "big data" about recent consumer wants.

Creative experimentation propels our culture forward. That our stories of innovation tend to glorify the breakthroughs and edit out all the experimental mistakes doesn't mean that mistakes play a trivial role. As any artist or scientist knows, without some protected, even sacred space for mistakes, innovation would cease.

Conly might respond that she's talking about irrational behavior with long-term consequences, which we're bad at foreseeing. First of all, I'm not convinced that the article's main example, obesity, is so distant in time from the behavior that causes it. If you go on a diet, you can often notice the results (or lack thereof) pretty soon.

But more fundamentally: why should I expect government to be better at considering my long-term future than I am? Are politicians truly concerned about what happens to me decades from now? I'm not sure about that. What I am sure about is that I care about what happens to me decades from now, and that politicians care about winning the next election. So is government really in a better position to look out for our own interests than we are?

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.

My favorite quotes from a year of blogging

The following are my favorite quotes by other people that I've blogged in my first year of blogging (April 12, 2008 to April 11, 2009).

For the sake of readability, I've removed all formatting (italics, etc.) and alterations (ellipses and brackets). If you happen to need a more exact quote, just click the attribution link and look for it in the original post.


LIFE

"My friends tell me that I have a tendency to point out problems without offering solutions, but they never tell me what I should do about it." -- Daniel Gilbert

"Don't confuse simple, reasonable honesty with radical silliness. There is no reason to try to articulate blurry feelings or over-explain every detail. The point is to be honest instead of internalizing, not to try to extract juicy confessionals out of everyday life." -- Summer Anne Burton


WORK

"Very few men can be genuinely happy in a life involving continual self-assertion against the skepticism of the mass of mankind, unless they can shut themselves up in a coterie and forget the cold outer world. The man of science has no need of a coterie, since he is thought well of by everybody except his colleagues. The artist, on the contrary, is in the painful situation of having to choose between being despised and being despicable." -- Bertrand Russell

"One of the worst pieces of career advice that I bet each of you has not only gotten but given is to 'do what you love.' If you tell yourself that your job has to be something you'd do even if you didn't get paid, you'll be looking for a long time. Maybe forever. So why set that standard? The reward for doing a job is contributing to something larger than you are, participating in society, and being valued in the form of money. -- Penelope Trunk


ENVIRONMENT

"You might declare that global warming and energy insecurity, not to mention urban sprawl and pollution, have intensified the sin of indulging one's motoring desires. And I would not argue with that point. You're right. I am a bad man. But over the long term, if you want to develop a new transportation and energy policy, you'd probably want to err on the side of assuming that people won't change much. And it is human nature to like to be empowered." -- Joel Achenbach

"If you're a progressive, if you're driving a Prius, or you're shopping green or you're looking for organic, you should probably be a semi-vegetarian." -- Mark Bittman

"On the one hand, we are told that our overconsumption is polluting and cluttering up the earth with garbage, using up resources and showing insensitivity to all the needy people in the world. On the other hand, we are told that until we start buying more goods and services, the economy will be in the dumps and we will leave many of our fellow citizens jobless, homeless and hungry. Something is wrong with that picture." -- Ina Aronow


THOUGHT

"We have grown terribly -- if somewhat hypocritically -- weary of larger truths. The smarter and more intellectual we count ourselves, the more adamantly we insist that there is no such thing as truth, no such thing as general human experience, that everything is plural and relative and therefore undiscussable. Today’s essayists need to be emboldened, and to embolden one another, to move away from timid autobiographical anecdote and to embrace -- as their predecessors did -- big theories, useful verities, daring pronouncements. We must rehabilitate the notion of truth -- however provisional it might be." -- Cristina Nehring

"Is Mount Everest more 'real' than New York? I mean, isn't New York 'real'? I think if you could become fully aware of what existed in the cigar store next door to this restaurant, I think it would just blow your brains out! I mean, isn't there just as much reality to be perceived in the cigar store as there is on Mount Everest? You see, I think that not only is there nothing more real about Mount Everest, I think there's nothing that different." -- Wallace Shawn

"Complexity and obscurity have professional value -- they are the academic equivalents of apprenticeship rules in the building trades. They exclude the outsiders, keep down the competition, preserve the image of a privileged or priestly class. The man who makes things clear is a scab. He is criticized less for his clarity than for his treachery." -- John Kenneth Galbraith


DOUBT

"It is an odd fact of evolution that we are the only species on Earth capable of creating science and philosophy. There easily could have been another species with some scientific talent, say that of the average human ten-year-old, but not as much as adult humans have; or one that is better than us at physics but worse at biology; or one that is better than us at everything. If there were such creatures all around us, I think we would be more willing to concede that human scientific intelligence might be limited in certain respects." -- Colin McGinn

“Instead of explaining why this recession (or depression) is just like the others, we should attend to what is new and especially problematic about the current downturn and why it may not respond to policies modeled on avoiding the errors of the past. To speak of a crisis of financial epistemology may sound abstract, but it has had very concrete and disastrous consequences.” -- Jeffrey Z. Muller

"And this is the point in which I think I am superior to men in general, and in which I might perhaps fancy myself wiser than other men -- that whereas I know but little of the world below, I do not suppose that I know." -- Socrates


RELIGION

-- "Is life in general more rewarding if you are spiritual, and a real believer? Does someone who truly believes that God is watching my every step, God is taking care of me, whatever happens to me is somehow approved by or helped by God, does that person live a richer, fuller life than someone who thinks: we're on our own here?"
-- "It depends on your specific conception of God, because belief can equally well leave you with this constant sense that you're coming up short and you're being judged and you're not doing quite the perfect thing. You know, I was brought up very religiously, and I never totally lost that sense, you know, that I'm screwing up." -- Joel Achenbach and Robert Wright

"Our general repression of matters disgusting prevents us facing up to a serious health problem. If we are the 'god that shits,' then we are in full flight from ourselves. I even wonder whether religion itself and the whole idea of a god is produced by our self-disgust." -- Colin McGinn

"Every religion I know of has changed its views with respect to concrete controversies over long periods of time. People's views about the morality of homosexuality are likely to undergo some change, even though they're making judgments based on their religious beliefs. Because in fact, religion is an extremely durable, and yet flexible, way of trying to apprehend what's good and what's bad in the world. In fact, its durability comes from its flexibility. Now, speaking from inside a religion, it's hard to talk that way." -- Jack Balkin


SCIENCE

"It is this claim to a monopoly of meaning, rather than any special scientific doctrine, that makes science and religion look like competitors today. Scientism emerged not as the conclusion of scientific argument but as a chosen element in a worldview -- a vision that attracted people by its contrast with what went before -- which is, of course, how people very often do make such decisions, even ones that they afterwards call scientific." -- Mary Midgley

"If a psychological Maxwell devises a general theory of mind, he may make it possible for a psychological Einstein to follow with a theory that the mental and the physical are really the same. But this could happen only at the end of a process which began with the recognition that the mental is something completely different from the physical world as we have come to know it through a certain highly successful form of detached objective understanding. Only if the uniqueness of the mental is recognized will concepts and theories be devised especially for the purpose of understanding it." -- Thomas Nagel

"We're all puppets, and our best hope for even partial liberation is to try to decipher the logic of the puppeteer. Just because natural selection created us doesn't mean we have to slavishly follow its peculiar agenda. (If anything, we might be tempted to spite it for all the ridiculous baggage it's saddled us with.)" -- Robert Wright


GOVERNMENT

“Something that’s unsustainable, like a dysfunctional relationship, can go on longer than you expect, and then end faster and messier than you think.” -- President Obama's budget director Peter Orszag, as quoted by David Leonhardt

"The confidentiality of the judicial process would not matter greatly to an understanding and evaluation of the legal system if the consequences of judicial behavior could be readily determined. If you can determine the ripeness of a cantaloupe by squeezing or smelling it, you don't have to worry about the produce clerk's mental processes." -- Richard Posner

"And that was an unedited interview with the secretary of state taped earlier this morning from Jordan. We appreciate Secretary Powell's willingness to overrule his press aide's attempt to abruptly cut off our discussion as I began to ask my final question." -- Tim Russert


ANIMALS

"I'm not a vegetarian. Now, don't get me wrong -- I like animals. And I don't think it's just fine to industrialize their production and to churn them out like they were wrenches. But there's no way to treat animals well when you're killing 10 billion of them a year. Kindness might just be a bit of a red herring. Let's get the numbers of animals we're killing for eating down, and then we'll worry about being nice to the ones that are left." -- Mark Bittman

"If you eat meat, something like that is going on in the background for you too." -- Ann Althouse


GENDER

"Back then, it was better to be a man because before a woman and an animal were considered the same thing. Now, Albanian women have equal rights with men, and are even more powerful." -- Pashe Keqi, as reported by Dan Bilefsky

"No matter how bad things get for boys/men, well, they're men, so they can look after themselves. Women, on the other hand, need a Presidential Council to make sure they're doing all right, even if by many metrics they are outperforming men." -- "Sofa King"

"[quoting this New York Times article:] 'Women's desire is dominated by yearnings of self-love, by the wish to be the object of erotic admiration and sexual need.' A lot of feminist writing would say that the culture has oppressed women by presenting them as the object of male desire. What if that originates in the woman? Well that would shake the foundations of feminism!" -- Ann Althouse

"From the moment of conception on, men are less likely to survive than women. It's not just that men take on greater risks and pursue more hazardous vocations than women. There are poorly understood -- and underappreciated -- vulnerabilities inherent in men's genetic and hormonal makeup." -- Marianne J. Legato


RIGHT and WRONG

"We are vulnerable, but we don't want to be reminded of that. We want to believe that the world is understandable and controllable and unthreatening, that if we follow the rules, we'll be okay. So, when this kind of thing happens to other people, we need to put them in a different category from us. We don't want to resemble them, and the fact that we might is too terrifying to deal with. So, they have to be monsters." -- Ed Hickling, as reported by Gene Weingarten

"Those subject to capital punishment are real human beings, with their own backgrounds and narratives. 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." -- Cass Sunstein and Adrian Vermeule

"Each act of cruelty is eternally a part of the universe; nothing that happens later can make that act good rather than bad, or can confer perfection on the whole of which it is a part." -- Bertrand Russell


ART

"The devaluing of the visual goes along with the theory that there is no such thing as quality, i.e., good versus bad, a theory that inevitably comes to parody itself as a prejudice against the beautiful." -- Richard Lawrence Cohen

Cass Sunstein and Richard Thaler's libertarian paternalism needs a better name.

I'm glad to see someone pointing out Cass Sunstein and Richard Thaler's abysmal branding of their potentially powerful theory. A Chicago Tribune article says:

[Thaler and Sunstein] co-wrote a book last year called "Nudge: Improving Decisions About Health, Wealth and Happiness." In it, they put forth the idea that by shrewdly shaping the context in which individuals make decisions—something they call "choice architecture"—the government can help individuals eat better, plan wisely for their retirements and avoid polarizing arguments on issues as diverse as gay marriage and motorcycle helmet laws. The book and its ideas were quickly embraced by Britain's Conservative Party as a possible successor doctrine to Thatcherism. ... Thaler and Sunstein call their approach "libertarian paternalism," which may explain why the book has attracted less notice here [in America]. But that may change. Many of its Chicago School ideas were echoed by Obama during the presidential campaign and could soon become the playbook for his administration's economic policy. And Obama recently tapped Sunstein to be his regulatory czar, an obscure but potentially influential job.

Sunstein elaborates on the theory:

If a private company, or the government, offers something as the default, a lot of people will stick with it, even if a change is ridiculously simple to make. People often use what we call the "yeah, whatever" heuristic.

Why do defaults have such power? One reason involves inertia. People have a lot of things to think about, and especially when the choice is complicated, they're might well decide not to decide or to procrastinate. Another reason involves suggestion. When an option is described as a default, people often think, someone sensible thought that this is the way to go, and I might as well go along with what they thought.

For instance, Tulsa changed the default setting of its city printers to double-sided; the city estimates it will save over $40,000 a year.

As Sunstein admits, their theory obviously raises serious questions, like, "Who sets the defaults?" See this post if you're interested in answers to some common objections.

Sunstein also admits in that post that one of the main objections is to the name:

Objection: Libertarian paternalism is an ugly and confusing term. Ugh!

Answer: Maybe. Probably. Originally we wanted to call the book Libertarian Paternalism, and no one wanted to publish that book. So we called it Nudge.

The book title is obviously a moot point since the book has been published. But the theory is a dynamic thing that could either thrive or die out. The name could seriously affect the fate of the theory (which could in turn affect public policy).

So what should it be called?

"Libertarian paternalism" is too much of a mouthful. It's just too many syllables. And it's so Orwellian that it's practically begging to be made fun of. "Paternalism," even aside from being blatantly sexist, does not have positive connotations for most people, at least most Americans. (Considering that Sunstein and Thaler's premise is that they're attuned to subtle psychological reactions, I'm surprised they missed this.)

Sunstein explains that people shouldn't take the term to be an oxymoron:

The approach is libertarian in the sense that it preserves freedom of choice. It is paternalistic in the sense that it tries to produce good outcomes for choosers.

Note that I'm not critical of the theory itself. I like the theory, which is why I want it to have a better name.

"Nudge" (which is what Sunstein and Thaler seem to call it on their blog, Nudge) is too breezy. Since it's already a familiar verb, you'd always need to explain what you mean, which would seem to defeat the purpose of a snappy buzzword. And it conjures up a negative image: someone pushing you around (albeit gently).

"Choice architecture"? That's not as bad as "libertarian paternalism," but it's still a mouthful. (The word "architecture" itself is a mouthful -- try saying it 3 times fast.) More importantly, it's too authoritarian. If you take the metaphor seriously, it sounds like there's an "architect" putting everything in exactly the right place, which would seem to contradict the idea of individual freedom.

How about "structured choice"? Or "choice framing"?

You want to suggest that there's this big framework -- not one that's pushing (nudging) you around, but one that's actually inviting, because whether you stick with the default or switch to something else, you'll be able to do what you want.

Or we could just take a cue from Sunstein and call it the "yeah, whatever" theory.

Hmm ... "the avuncular state"?

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.

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.