« The limited impact of Blakely in Apprendi-land | Main | The echoes of Blakely where it all began »

December 19, 2005

Further exploration of question "Is Capital Punishment Morally Required?"

Earlier this year, Cass Sunstein and Adrian Vermeule circulated a provocative article entitled "Is Capital Punishment Morally Required? The Relevance of Life-Life Tradeoffs" (which I first noted here and critiqued here).   I now see from this page that the paper, along with critical responses and a reply, will fill much of the December issue of the Stanford Law Review.

As first noted in this post, Carol Steiker had posted on SSRN a few weeks ago her response: No, Capital Punishment is Not Morally Required: Deterrence, Deontology, and the Death Penalty.  And now I see SSRN also has the contribution from John Donohue and Justin Wolfers, Uses and Abuses of Empirical Evidence in the Death Penalty Debate

Serious fans of serious debate over the death penalty should be sure to read all of these Stanford Law Review pieces (as well as, of course, the Sunstein and Vermeule reply, which I cannot yet find on-line).  Also, given the SLR's amazing October issue, which I fawned over here and here and here, I may start thinking of SLR as a short-hand for the Sentencing Law Review.

UPDATECoincidentally, today over at The Becker-Posner Blog, Richard Posner has a post on "The Economics of Capital Punishment," and Gary Becker follows with a post entitled "More on the Economics of Capital Punishment."  Both posts seem to support capital punishment because of its purported deterrent impact.

I must say that I find the posts by both Posner and Becker to be surprisingly simplistic.  Neither of them seriously engages with the robust empirical debate over the evidence of capital punishment's purported deterrent effect.  Even more disconcertingly, neither explains or even explores why capital punishment should be limited to murderers (and not extended, for example, to drunk drivers) if its deterrent effect is a sufficient condition for its use.  As I first explained in this post, I find the deterrence arguments especially challenging when we consider drunk driving fatalities. 

Statistics show that there are over 17,000 alcohol-related driving fatalities each year (data here), and I have to think we could significantly reduce that number by executing just a few drunk drivers.  Drunk driving seems like a much more deterrable crime than some other killings, and recent history suggests that laws and public awareness can have a significant impact on alcohol-related driving fatalities.) 

Are Posner and Becker prepared to advocate the execution of drunk drivers because of the death penalty's likely deterrent impact in this setting (at least in states like California, Florida, and Texas that have a high number of alcohol-related driving fatalities)?  Becker closes his post by claiming "the capital punishment debate comes down in essentials to a debate over deterrence," but thinking about this claim through the lens of drunk driving fatalities really tests this debatable assertion.

December 19, 2005 at 05:38 PM | Permalink


TrackBack URL for this entry:

Listed below are links to weblogs that reference Further exploration of question "Is Capital Punishment Morally Required?":


Damn it, Doc, don't give our guys any ideas. ;-)

Posted by: Scott | Dec 20, 2005 4:17:42 AM

Any time you increase the cost associated with a given behavior, you should see a decrease in instances of that behavior. I think this is the "common sense" Becker refers to in the closing paragraph of his post. Any empirical data showing otherwise is suspect.

That said, there are reasons why the deterrent effect of capital punishment may be small. The "cost" of committing a murder must be calculated prior to the act. This cost is percieved as small if the odds of being caught are percieved as small. This is cost can also be percieved as small(er) if one knows his death sentence won't be carried out for several decades, especially when those decades provide numerous opportunities to have the sentence commuted. What's more, young people are likely to do a poor job of calculating a price not to be paid for 25 years. I'm 26 now, and it is hard for me to appreciate 26 years into the future.

I got nabbed for DUI in college. Clearly the stiff Ohio DUI punishments did not deter me. But they do now. And not because a 2nd offense carries a higher penalty (though that is part of the reason), but primarily because my perception of the odds of being caught has dramatically changed. Prior to getting busted I was convinced the odds were slim. They may still be slim, but I'm not taking any more chances.

So there are reasons why punishments of any sort may not deter behavior in any specific cases. Nonetheless, assuming death is percieved by killers as worse than life in prison (it may not be), then death should have, in the aggregate, a higher deterent effect relative to that alternative, everything else being equal. If the empircal evidence is pointing towards something else, then all else is not equal.

Posted by: Steve Podraza | Dec 20, 2005 5:26:21 PM

Becker imagines that capital punishment might save 3 lives per 1 taken. Would capital punishment for DUI save more lives than it takes? I don't see any way to make this calculation, but if it would, then Becker's argument doesn't hold up, agreed.

Ok, I'm finished now. It's rare that I have opportunity to comment here, I usually have no idea what you're talking about.

Posted by: Steve Podraza | Dec 20, 2005 5:31:15 PM

I must say that I find the posts by both Posner and Becker to be surprisingly

Why are you "surprised" to find Posner "simplistic"? Isn't he famous for it?


Posted by: Anderson | Dec 20, 2005 5:41:11 PM

Ok, I'm not finished. Here's more on the DUI capital punishment issue. My personal experience leads me to believe that capital punishment for DUI would all but eradicate the practice, and very quickly. So according to Becker's logic, it should be instituted, if such lives saved/lives taken calculation is our only concern. Of course, it is not. There is also the issue of a punishment fitting a crime, and while killing fits killing, increasing the risk of killing (DUI) doesn't fit killing (capital punishment).

Perhaps DUI offenders should be put at risk of death. An electric chair with a voltage chosen at random, lethal doses being pretty rare. Am I kidding? Probably.

Posted by: Steve Podraza | Dec 20, 2005 5:43:31 PM

The problem with a death penalty for DUI is that you would encourage drunk drivers to murder witnesses and arresting officers in order to escape being apprehended for DUI, because there is no greater punishment you can impose on them.

FYI, I am a practicing commercial and appellate attorney.

Posted by: Ryan | Mar 9, 2006 4:12:55 PM

dell latitude d430 battery

Posted by: | Oct 14, 2008 9:52:37 PM

Post a comment

In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB