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January 8, 2009

Does Cass Sunstein really think capital punishment may be morally required?

The Washington Post reports here on another prominent law professor about to go from a faculty salary to a government salary:

President-elect Barack Obama will name Cass R. Sunstein, a close friend and one of the nation's top constitutional lawyers, to a senior-level post in charge of government regulation, a transition official said. Sunstein, a Harvard University law professor who grew close to Obama during their years at the University of Chicago, will become the administrator of the Office of Information and Regulatory Affairs.

Obama talked on the campaign trail about the need to revamp the nation's regulatory structure, especially in housing and finance, areas in which lapses contributed to the current economic crisis. In his new position, Sunstein will oversee reform of regulations, seeking to find smarter approaches and better results in health, environment and other domestic areas, a transition source said.

The office Sunstein will head is part of the Office of Management and Budget and is responsible for reviewing draft regulations and overseeing the implementation of government-wide policies aimed at making federal agencies more efficient, according to the mission statement on its Web site.

As first noted here, Sunstein has recently argued (along with Adrian Vermeule), in an article entitled "Is Capital Punishment Morally Required? The Relevance of Life-Life Tradeoffs," that governments may have an obligationto use the death penalty if it can deter killings and save innocent lives.  I have a feeling that Sunstein considered this article to be academic musings not a policy paper for the management of the federal criminal justice system.  Nevertheless, since I would like to see the feds take over the administration of capital punishment (and take it away from the states), I am strangely hopeful that Sunstein might be seriously committed to trying to do something new and bold in the arena of capital punishment.

Some related posts on Sunstein's paper and death penalty deterrence:

January 8, 2009 at 11:35 AM | Permalink


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"Nevertheless, since I would like to see the feds take over the administration of capital punishment (and take it away from the states), I am stragely hopeful that Sunstein might be seriously committed to trying to do something new and bold in the arena of capital punishment."

Doug, is the Constitution a barrier to this federal pre-emption of state use of capital punishment?

Posted by: federalist | Jan 8, 2009 11:51:44 AM

American deterrence
In memoriam of Michael Mello


December 18, 1865 Slavery abolished in US
December 18, 1965 Gallows abolished in UK

The deterrence of the American death penalty ends with the Millennium Bug.

Once Upon a Time there was the theory of the deterrence of the death penalty.
This theory was easy to understand: “the more the State kills, the less there are homidices”, but it was a hoax.

Americans belive in death penalty even if in the Thirties, when executions were common, the homicide rate was very hight and in Forties and Fifties both executions and murders fall. They take for granted that the grow of homicides in the Sixties was linked to the suspension of executions (1967-1977) and forget that America was without capital punishment for a very short time after Furman. According to the hangmanfriends any drop in the homicide rate is the benefit of the soar of executions and they do not notice that both rise from 1984 to 1991.

Their mantra is that each execution saves 18 innocent lives (someone offers even more) and from 1991 to 1999 this seemed to happen: with more and more executions and less and less murders. The triumph of the executioner was 1999 with 98 executions, 300 death sentences and the lowest homicide rate in decades: 5,7.
So, they all lived happily ever after?
Not exactly.

Executioners’ triumphalism ends the following year.
Their bombastic confidence suddenly disappeared as the supposed deterrent effect of the death penalty vanished. Since 2000 we saw a breakneck drop both in sentences as well as executions and, in the same time, we assisted to a remarkable stability in the homicide rate. Death sentences are now a little more than one hundred per year and executions were only 53 in 2006, 42 in 2007 and a mere 37 in 2008. On the other side the homicide rate looks nailed between 5,5 and 5,7.

This can be explained in two ways: prospective murderers do not know that the probability to be condemned to death is even rarer than before, or the whole theory of the deterrence of capital punishment is an enormous bullshit.
I am inclined to the second explanation.

Americans hangmanfriends are very insular and do not like to get a look abroad: not even north of the border. It’s a pity because they could learn a lot.
In 2002 Americans were very happy because they had only 16.638 criminal homicides. They were right because, from 1984 to 1993, criminal homicides were 22.000 per year and 25.000 in 1991. Au contraire, in the same 2002, in Italy we were very afraid because, with a population that is grosso modo one fifth of the American one, we had 638 homicides. We were very concerned about it, even if those 638 were less than one third the 2.000 homicides we had in 1991. Americans love to think the drop in homicides is a benefit of the death penalty. We cannot agree because we are a death penalty free country. (In Europe this punishment is strictly forbidden and the majority of the world is abolitionist).
Actually Italy ended capital punishment in 1877 and had it again only under fascism. In those sad years the homicide rate was five times bigger that we have now, and, in the twenty years following the definitive end of the death penalty (1948-1968), the homicide rate dropped from 5 to 1,4.
Something very similar happened in Canada in the years that followed the end of capital punishment in 1976. Since then its homicide rate fell down constantly.
Curiously in the same July 1976 the US Supreme Court gave green light to the “new and improved” American death penalty and, with the shooting of Gary Gilmore (17th January 1977), the hangman was back in business and the experiment begun. Now, after more than 1.100 human sacrifices, we can say with Justice Blackmun: “the death penalty experiment has failed”.

Americans can see that capital punishment is not a deterrent even in their own country, where 15 jurisdictions are abolitionist (Michigan since 1837). A long time ago Thorsten Sellin observed that: “the states with executions chambers had rate or murder that were significantly higher than states that did not execute murders”. Possibly this is a consequence of the wild examples of brutality executions give, because: “ Our Government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example.” (Justice Brandeis, dissenting in Olmstead).

Of course this does not satisfy hangmanfriends, so John Lott writes:
“This simple comparison really doesn’t prove anything. The 12 states without the death penalty have long enjoyed relatively low murder rates due to factors unrelated to capital punishment.”
And wins the 2008 chutzpah prize.
Claudio Giusti
Please, excuse my very bad English

Dott. Claudio Giusti
Via Don Minzoni 40, 47100 Forlì, Italia
Tel. 39/0543/401562 39/340/4872522
e-mail giusticlaudio@aliceposta.it
Member of the Scientific Committee of Osservatorio sulla Legalità e i Diritti, Claudio Giusti had the privilege and the honour to participate in the first congress of the Italian Section of Amnesty International: later he was one of the founders of the World Coalition Against The Death Penalty.

Posted by: claudio giusti, italia | Jan 8, 2009 12:23:34 PM

One sure way to make federal agencies more efficient would be decapitating anyone who violates federal regulations. Two birds, one stone. It would not be punishment and could bypass the Bill of Rights for that reason.

Indeed, Sunstein is obligated to adopt this regulation first day in office.

Posted by: George | Jan 8, 2009 2:28:03 PM

Beware of the pool, blue bottomless pool.

Posted by: federalist | Jan 8, 2009 4:18:26 PM

Speaking of "academic musings," the notion that the regulator of regulations is a position from which to "do something new and bold in the arena of capital punishment" strikes me as a musing, and an amusing one at that.

Posted by: Kent Scheidegger | Jan 8, 2009 6:32:05 PM

Deterrence theory: the belief that killing poor people is a moral obligation in order to reduce the crime rate by a fraction of a percent despite the fact that providing material support to poor people would virtually eliminate it. In other words, the belief that violent crime should continue virtually unabated and that nothing effective should be done to try to prevent it.

Posted by: DK | Jan 8, 2009 9:49:29 PM

Don't let the chlorine in your eyes blind you to the awful surprise . . . .

Posted by: federalist | Jan 8, 2009 9:57:01 PM

DK: "...despite the fact that providing material support to poor people would virtually eliminate it."

Once again, we see the truth of the old saying, "It's not what we don't know that gets us in trouble. It's what we know for a 'fact' that just ain't so."

Alas, there are still people around who still believe that old Great Society bilge.

Posted by: Kent Scheidegger | Jan 9, 2009 1:23:22 PM

Kent, DK would probably think the Great Society only a single step on a journey of 1000 miles.

DK, beware of signs that say hidden driveways.

Posted by: federalist | Jan 9, 2009 1:33:08 PM

kent, your arrogance is sooo 2008.

Posted by: rothmatisseko | Jan 9, 2009 5:33:10 PM

Kent Scheidegger wrote: "Once again, we see the truth of the old saying, 'It's not what we don't know that gets us in trouble. It's what we know for a "fact" that just ain't so.'"

Do you retort with the same witticism when confronted with people pronouncing the fact of evolution?

"A follow-up report issued in 1999 by the Milton S. Eisenhower Foundation warned that in spite of evidence that violent crime rates are decreasing, crime is still higher in the United States than in any industrialized country. The report noted further that the causes of crime remain strongly rooted in social and political problems. One of the most significant of these problems is poverty. In spite of record-low unemployment, low inflation, and a booming national economy, most inner-city minority adults do not hold a job that pays a living wage. The top 1% of Americans have more money that the bottom 90%--the most lopsided wealth inequality of any industrialized nation. ...

"Sociologists and criminologists have stressed that this kind of social inequality highlighted in the Eisenhower Foundation report stimulates crime (Bursik, 1988; Reiman, 1995). Violent crime rates—including crimes stemming from gang activity—are positively correlated with income inequality in society and with poverty and unemployment (Curry & Spergel, 1988; Menard & Elliott, 1990; Rosenfeld, 1985).

Elaine Cassel & Douglas A. Bernstein, Criminal Behavior 286 (2d ed. 2007).

"Welfare in the narrow American sense of providing aid to the poor constitutes an obvious mechanism for protecting people’s income. And, as it turns out, a body of cross-national literature shows that welfare expenditures are negatively related to homicide rates: The greater the welfare expenditures, the lower the homicide rates. The United States, of course, spends less on welfare than do other Western nations, and its efforts are more focused. ...

"The stability of the relationship between inequality and homicide led Judith Blau and Peter Blau to the chilling conclusion that 'high rates of criminal violence [including homicide] are apparently the price of racial and economic inequalities' in America."

Leonard Beeghley, Homicide 151 (2003).

No serious person disputes that enforcing material deprivation on a large class of persons within a society causes crime. You're the political equivalent of a flat earth proponent, Kent. Only they're rather harmless, since, you know, they don't go around advocating killing poor people for their own sins.

If you want to reduce murder, you know what has to be done. You don't, so you don't.

Posted by: DK | Jan 9, 2009 8:33:19 PM

"Do you retort with the same witticism when confronted with people pronouncing the fact of evolution?"

Huh? Why would I? This question appears to be based on an unjustified and false assumption, kind of like the rest of your argument.

Posted by: Kent Scheidegger | Jan 13, 2009 6:44:15 PM

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