June 30, 2008
A Sunsteinian death penalty puzzle
Professors Cass Sunstein and Justin Wolfers have this notable commentary in the Washington Post, headlined "A Death Penalty Puzzle: The Murky Evidence for and Against Deterrence." Here is how it starts and ends:
Although the Supreme Court banned capital punishment for child rape last week, the justices have made it clear that for homicide, states may inflict the ultimate penalty. Last month, capital punishment resumed after a seven-month moratorium. Rapid scheduling of executions followed the Supreme Court's ruling in Baze v. Rees, reaffirming the constitutionality of the death penalty in general and lethal injection in particular.
To support their competing conclusions on the legal issue, different members of the court invoked work by each of us on the deterrent effects of the death penalty. Unfortunately, they misread the evidence....
In short, the best reading of the accumulated data is that they do not establish a deterrent effect of the death penalty.
Why is the Supreme Court debating deterrence? A prominent line of reasoning, endorsed by several justices, holds that if capital punishment fails to deter crime, it serves no useful purpose and hence is cruel and unusual, violating the Eighth Amendment. This reasoning tracks public debate as well. While some favor the death penalty on retributive grounds, many others (including President Bush) argue that the only sound reason for capital punishment is to deter murder.
We concur with Scalia that if a strong deterrent effect could be demonstrated, a plausible argument could be made on behalf of executions. But what if the evidence is inconclusive?
We are not sure how to answer that question. But as executions resume, the debates over the death penalty should not be distorted by a misunderstanding of what the evidence actually shows.
June 30, 2008 at 09:14 AM | Permalink
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Tracked on Sep 21, 2009 12:56:44 PM
Read that this morning as well.
"We concur with Scalia that if a strong deterrent effect could be demonstrated, a plausible argument could be made on behalf of executions. But what if the evidence is inconclusive?"
I do not think it matters to Scalia if the evidence is inconclusive or even if it was conclusive against deterrence.
I think Scalia's point is to draw a contrast between his own argument which is based solidly on originalist constitutional grounds and Stevens' which is based on inconclusive evidence which should be left to the legislature to sort through anyhow.
Posted by: nathan | Jun 30, 2008 9:47:18 AM
Sunstein may be brilliant, but this deterrence stuff he's been peddling for some time is the worst kind of pander. Like the liberals whose ignored reality and their better judgment in order to sell the Iraq War, Sunstein seems to get some ego boost from being the Serious, Post-Partisan Arbiter of the Truth about deterrence.
Of course, there's no clear evidence either way -- especially if one looks at the question in the laughably broad brushstroke way he looks at it in his op-ed.
Posted by: firstname.lastname@example.org | Jun 30, 2008 9:59:45 AM
How come deterrence arguments never mention the role of probability of apprehension -- as though the severity of penalty determines whether one will commit a crime, but the likelihood that the crime will be solved at all plays no role at all.
Posted by: dm9871 | Jun 30, 2008 10:04:03 AM
There's an excellent article in the Stanford Law Review from a couple of years back that I thought (obviously incorrectly) put the deterrence arguments to rest. Its basic thesis was that given the few number of executions in any given year, it’s impossible to measure the deterrent effects on murder rates, given the huge number of variables that will affect the murder rate. The study did a good job of going through the most notable studies that show there’s a correlation between the death penalty and murder rate and showing how changing one small variable a tiny bit would completely skew the results.
And I think that does leave us with the question of what we do if we can’t know the deterrent effect of the death penalty, especially since there’s good theoretical arguments on both sides for why the death penalty will or will not deter murder. It seems to me that since we live under a government of limited powers, the burden should be on the government to justify use of the death penalty. Given that, to the extent that the government relies on deterrence to support the death penalty, the burden should be on it to prove it has some deterrent effect.
Posted by: Not the same | Jun 30, 2008 10:31:50 AM
Look, the truth of the matter is that capital punishment is NOT a general deterrent. However, if Justices want to take the position that it serves its purpose as SPECIFIC deterrent, who can argue with that line of thinking?
The last research conducted at the University of Emory in 2003 was PROVEN to have faulty methodology by Dr. Fagan. Even a 5th grader could have told you what was wrong with it. Here's why I love the Internet. I found the link on the net. Dr. Fagan of Columbia Law School's testimony. http://www.deathpenaltyinfo.org/FaganTestimony.pdf
The truth of the matter is that there is evidence showing homicides INCREASING before and after a highly publicized execution. That is common knowledge in the criminal justice field and attorneys that deal in this area of law and are able to take their personal opinion based on emotion out of it know this information as well.
If we're going to continue to use capital punishment as a punishment tool, let's get the goals correctly, incapacitation, retribution, and specific deterrence. The information we have on a general deterrence effect is inconclusive.
Posted by: Ange | Jun 30, 2008 11:30:28 AM
The issue is not whether the DP deters. The issue is, who should make that decision. Should the Courts or the legislatures decide whether the DP deters. Scalia says that the legislature should, Stevens says it should be the Courts.
Posted by: Scott | Jun 30, 2008 11:36:35 AM
Crimes of passion don't usually involve a cost-benefit analysis. And those that are not crimes of passion usually think they aren't going to get caught. Only the stupid would commit a crime KNOWING for sure s/he will get caught.
One of the biggest problem in regard to measuring the deterrent effect of capital punishment is asking people, "were you ever in a position to kill someone and you though, hmmm...if I get caught, my rear is FRIED let me NOT do it."
How do you get those responses? Most people aren't murders.
Posted by: Ange | Jun 30, 2008 11:38:18 AM
Scot, I missed that. I would say the Court. Legislatures too often are into what will get them to elected not what is right.
Posted by: Ange | Jun 30, 2008 11:40:53 AM
Stevens' idea that courts ought to determine whether the death penalty deters is interesting--since when do courts have the institutional competence to make that decision.
Posted by: federalist | Jun 30, 2008 11:43:23 AM
federalist, since when do courts have the institutional competence to determine the "original intent" of something? Since when do courts have the institutional competence to determine whether a certain gun of speech regulation is "reasonable"?
Posted by: Not the same | Jun 30, 2008 12:20:34 PM
"There's an excellent article in the Stanford Law Review from a couple of years back that I thought (obviously incorrectly) put the deterrence arguments to rest."
And why did the authors of this "excellent" article (one of whom is one of the authors of the op-ed in question) choose to publish their article in a law review rather than a peer-reviewed social science journal?
I have no doubt that the law student editors of the Stanford Law Review scrupulously ensure that every footnote conforms to the Harvard Bluebook. Do they know diddly squat about social science methodology? Can they tell valid science from hogwash?
As a corollary to the Harry Truman principle, if you see someone avoiding the kitchen, he probably knows he can't take the heat. The studies finding a deterrent effect are in the kitchen -- the peer-reviewed literature -- and the critics are not.
Posted by: Kent Scheidegger | Jun 30, 2008 12:46:20 PM
I think you are absolutely right, our legislatures are flawed. However, until we do something to change that (I dunno, maybe by voting for better candidates?) we can't just take their job away from them. Under your theory,why not just shift all decisions to the judiciary since the legislature is obviously woefully incapable of functioning?
Maybe all of us college-educated (or perhaps we should require education above college?) folks should appoint 12 permanent Guardians?
Sorry for the heavy dose of sarcasm, I just do not think we should strip a branch of government of their constitutional duties because they are not exercising them in a fashion that you agree with.
Posted by: Nathan | Jun 30, 2008 12:47:47 PM
Worth a post of its own by our host:
The time from sentencing to execution is twice the national average. Panel recommends limiting crimes eligible for capital punishment or sentencing inmates to life without parole instead.
Posted by: George | Jun 30, 2008 12:59:40 PM
Three other things I noticed in tha article you linked.
First, the Commission does not recommend abolition of the death penaty.
Second, the Commission found no credible evidence that California had executed an innocent person.
Third, the expansion of crimes eligible for the death penalty was brought about, not by some sinister conspiracy, but by a 1978 vote of the people.
Obviously there's more there. Readers can go to your link, as I did. Thank you for providing it.
Posted by: Bill Otis | Jun 30, 2008 1:18:05 PM
You're welcome. The report itself is evidently not published yet, but will likey be found at their site here (Reports and Recommendations) when it is.
Posted by: George | Jun 30, 2008 1:56:20 PM
Bill: One would hope there was no credible evidence that California had executed an innocent person. It would be a pretty damning finding if it had, no? Especially since CA has executed only 13 people since 1976.
Posted by: dm9871 | Jun 30, 2008 2:04:52 PM
The dissent to the report is available here.
Posted by: Kent Scheidegger | Jun 30, 2008 4:12:41 PM
The article states ". . . researchers' tendency to report only those results supporting their conclusions."!
My goodness, this seems much like the pot calling the kettle black. Please see the four replies to Donahue and Wolfers, at bottom - replies which, collectively, appear to lay waste to Donahue and Wolfers criticism. It should also be pointed out that Donahue and Wolfers chose not to publish their criticism in a peer reviewed publication.
The article continues: "In short, the best reading of the accumulated data is that they do not establish a deterrent effect of the death penalty."
REPLY: I think it is arguable that is an unfair reading of the data. My take is that it would be more accurate to state that the social science of determining the measurable effect of general deterrence is challenging, at best. The strength of the recent econometric studies is suggestive of a deterrent effect of the death penalty and the criticism of those studies seems much less robust than the studies, themselves.
In general terms, the weight of the evidence is that all prospects for a negative outcome deter some. There appears to be few, if any, exceptions to that rule.
The article continues: "But as executions resume, the debates over the death penalty should not be distorted by a misunderstanding of what the evidence actually shows."
REPLY: Again, it appears that misunderstanding is, precisely, what this newest article was distributing, however unintended.
The article continues: "A prominent line of reasoning, endorsed by several justices, holds that if capital punishment fails to deter crime, it serves no useful purpose and hence is cruel and unusual, violating the Eighth Amendment." "While some favor the death penalty on retributive grounds, many others (including President Bush) argue that the only sound reason for capital punishment is to deter murder."
REPLY: The lack of balance or understanding by S&W appears quite robust. There are many well defined reasons for criminal sanction, outside of deterrence. Retribution, justice, upholding the social contract, incapacitation, among others. Obviously, capital punishment does not violate the Eight Amendment, as both the 5th and 14th Amendments assert the constitutionality of the death penalty. These are well known and important facts, not in S&W's article.
Both the current Pres. Bush and former VP Al Gore stated they support the death penalty because of deterrence. However, it is important to clarify. Does anyone believe that either Gore of Bush would support the execution of someone if it wasn't deserved? I suggest the answer is no. It's a fair question. Ask them. Then ask them, if the death penalty did not deter like men as Bib Laden or Hitler, would you still support their executions? Does anyone not know their answer? Of course not.
The article continues: "We concur with Scalia that if a strong deterrent effect could be demonstrated, a plausible argument could be made on behalf of executions. But what if the evidence is inconclusive?"
REPLY: Inconclusive? The weight of the evidence is that some are deterred by any prospect of a negative outcome. But, let's project an imaginary world where the evidence is completely neutral on the effects of negative prospects, where there is no evidence of what incentives mean to behavior.
We have two equally balanced prospects. The death penalty/executions deter and the death penalty/executions don't deter.
This prospect is neither inconclusive or equally balanced, because you have a prospect between sparing innocent life, via death penalty/execution deterrence or a prospect of death penalty/execution, with no deterrence, but enhanced incapacitation.
If deterrence is inconclusive, the prospect of saving innocent lives is not.
In addition, the deterrence calculus becomes- we execute and save additional innocent lives (via deterrence) or we execute and don't save additional innocent lives (via deterrence). The weight falls upon saving additional lives, if we have inconclusive data, because the weight is greater for saving additional innocent lives than on not saving additional innocent lives.
With this type of calculus, the only argument for not executing is if the evidence is clear that the death penalty/execution is sacrificing more innocents, via brutalization. The evidence for brutalization effect is far less robust than the studies finding for deterrence. Not surprising, as brutalization finds that the more severe sanction increases murders.
As noted, there are a number of good reasons to argue in favor of the death penalty, other than deterrence. Even if the death penalty is a very marginal deterrent, it is still a robust argument in favor of the sanction.
Let's say that every four executions deters one potential murderer and every twenty death sentences deters one potential murderer. That would mean that around 650 innocents had been spared since 1973. Even marginal deterrence equals major benefit.
This does not take into account the two other ways that the death penalty saves additional innocent lives. Enhanced incapacitation and enhanced due process.
Sincerely, Dudley Sharp
four replies to Donahue and Wolfers
Hashem Dezhbakhsh & Paul H. Rubin
From the 'Econometrics of Capital Punishment' to the 'Capital Punishment' of Econometrics: On the Use and Abuse of Sensitivity Analysis (September 2007). Emory Law and Economics Research Paper No. 07-18, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1018533
Abstract: The academic debate over the deterrent effect of capital punishment has intensified again with a major policy outcome at stake. About two dozen empirical studies have recently emerged that explore the issue. Donohue and Wolfers (2005) claim to have examined the recent studies and shown the evidence is not robust to specification changes. We argue that the narrow scope of their study does not warrant this claim.
(2006) "This analysis shows that ((Donohue and Wolfers' "D&W's")attempts to make the deterrence effect disappear are ineffective." (p 16)
--- Existence of the death penalty, in law, has a statistically significant impact on reducing murders. (p 23)
--- Execution rates show significant impact in reducing murders. (p 13 & 23)
--- Death row commutations, and other removals, increase murders. (p13 & 23)
--- The criticism of our studies is flawed and does not effect the strength of the measured deterrent effect.
"The Impact of Incentives On Human Behavior: Can we Make It Disappear? The Case of the Death Penalty", Naci H. Mocan, R. Kaj Grittings, NBER Working Paper, 10/06, www(dot)nber.org/papers/w12631
(2006) " . . . (Donohue and Wolfers' "D&W") criticisms of Zimmerman's analysis are misrepresentative, moot or unsupportable in terms of the analyses they perform." "It is shown that Zimmerman's published empirical results, or the conclusions drawn from them, are not in any way refuted by D&W's critique." (pg 3) "This later estimate suggests that each execution deters 14 murders on average . . .". (pg 7) "It is shown that D&W made a number of serious misinterpretations in their review of Zimmerman's study and that none of the analyses put forward by D&W (which ostensibly refute Zimmerman's original results and conclusions) hold up under scrutiny. (pg8) " . . . D&W do not even report Zimmerman's "preferred" results correctly, and then proceed by carrying on this error throughout the remainder of their critique."(pg8) "Of course, (D&W's) omission tends to create a strong impression that Zimmerman's analysis 'purports to find reliable relationships between executions and homicides', when his actual conclusions regarding the deterrent effect of capital punishment are far more agnostic." (pg10) " . . . D&W's method of interpreting their results is not consistent with that proscribed by the received econometric literature on randomized testing . . .". "As such, D&W's interpretation of their randomized test in itself does not (and cannot) reasonably lead one to conclude that Zimmerman's estimates suggesting a deterrent effect of capital punishment are spurious." (pg12) " . . . D&W do not appear to have interpreted their randomization test in any meaningful fashion." (pg14) " . . . the state clustering correction employed by D&W may not be producing statistically meaningful results." (pg16) "And while D&W once lamented that recent econometric studies purporting to demonstrate a deterrent effect of capital punishment yield 'heat rather than light', as shown herein, their criticisms of Zimmerman (2004) tend to yield 'smoke rather than fire'."(pg26)
Zimmerman, Paul R., "On the Uses and 'Abuses' of Empirical Evidence in
the Death Penalty Debate" (November 2006). ssrn(dot)com/abstract=948424
(2007) "Had (D&W's) paper been subjected to the normal blind peer review process in an authoritative economic journal it is highly unlikely that it would have survived intact , if at all. "
"(D&W's) Quibbling over numerous and sometimes meaningless statistical issues obscures the picture painted by the cumulative effect of the nearly dozen studies published since the turn of the 21st century."
"Using differing methodologies and data sets at least five groups of scholars each working independently (and often without knowledge of the others) have arrived at the same conclusion—there is significant and robust evidence that executions deter some homicides. While there may be merit in some of (D&W's) specific criticisms, none addresses the totality of the collection of studies. The probability that chance alone explains the coincidence of these virtually simultaneous conclusions is negligible."
"DW’s unsupported claim that the appropriate variable in studies of deterrence using these borrowed tools from portfolio analysis is the amount or level of homicides in the respective jurisdictions. This claim is without theoretical basis or empirical precedent. "
"With regard to DW’s specific comments on our two papers (Cloninger & Marchesini, 2001 & 2006) we find very little requiring defense. Implicit in their critique, and explicitly stated in private communications, DW were able to replicate our results based on data we furnished, at their request, as well as data they acquired independently. "
"Reflections on a Critique", Dale O Cloninger and Roberto Marchesini, forthcoming Applied Economic Letters
Posted by: Dudley Sharp | Jun 30, 2008 5:15:46 PM