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June 11, 2007

Death and deterrence

It's a little bit of an oversimplification, but most proponents and opponents of capital punishment fall into one of two categories: the moralists or the practicalists. In fact, I'd venture that the people who care most about the issue -- on both sides -- fall predominantly within the moralist category.

For death-penalty opponents, this means they are opposed because it's always wrong to kill (which is a moralist argument whether offered by the religious or the non-religious); or because the power to kill should not be given to the government (this is a libertarian view that I used to hold); or because there is a risk of error, and any risk of error is too much in capital punishment; or because the system might be racially biased. All of these are moralist arguments, including the risk of error argument, which sounds like a practical argument but necessarily makes the moral judgment that, whatever the justification for death may be in the run of cases, we cannot risk the possibility that an innocent person will be executed.

For death-penalty proponents, the moralist arguments focus on the penological goal of retribution. They include arguments that murder is evil and must be eradicated; and that society has an obligation to affirm the value of innocent life by imposing a unique punishment, depriving those who deny the value of innocent life of their own lives. There are others, though they tend to sound like the two I've mentioned.

The practicalists on both sides, in contrast, wonder about general and specific deterrence. They wonder whether an alternative of life without parole is an adequate substitute for death. They wonder what happens if a murderer is confined to prison and murders again, either in prison or after early release.

So the practicalists may be very interested to learn that "a series of academic studies over the last half-dozen years that claim to settle a once hotly debated argument -- whether the death penalty acts as a deterrent to murder. The analyses say yes."

More specifically:

Among the conclusions:

-- Each execution deters an average of 18 murders, according to a 2003 nationwide study by professors at Emory University. (Other studies have estimated the deterred murders per execution at three, five and 14).
Among the conclusions:

-- The Illinois moratorium on executions in 2000 led to 150 additional homicides over four years following, according to a 2006 study by professors at the University of Houston.

-- Speeding up executions would strengthen the deterrent effect. For every 2.75 years cut from time spent on death row, one murder would be prevented, according to a 2004 study by an Emory University professor.
The article I've quoted notes that the studies are not without their critics, but I suspect that this is always true, regardless whether the studies support the pro or the con.

The question is what effect these conclusions, assuming they are shown to be correct, have on the moralists. I suspect that opponents would see little to change their views. If it's always wrong to kill, the utilitarian argument that killing a murderer prevents other deaths doesn't persuade. On the other hand, if the argument is that there is too much risk of error, one might end up conceding the possibility that these studies could be relevant.
The studies' conclusions drew a philosophical response from a well-known liberal law professor, University of Chicago's Cass Sunstein. A critic of the death penalty, in 2005 he co-authored a paper titled "Is capital punishment morally required?"

"If it's the case that executing murderers prevents the execution of innocents by murderers, then the moral evaluation is not simple," he told The Associated Press. "Abolitionists or others, like me, who are skeptical about the death penalty haven't given adequate consideration to the possibility that innocent life is saved by the death penalty."
And what of the moralist proponents of capital punishment (of whom I'm an example)? The answer is that we would welcome the refutation of practical arguments against the death penalty, but we would still think deterrence (at least general deterrence, which is, after all, the focus of these studies) is largely irrelevant. I've never really thought of the general deterrence argument as much a justification for capital punishement, so proof of a deterrent effect wouldn't bolster my views, just as the proof of no deterrent effect wouldn't make me doubt the benefit of capital punishment.

So let a thousand academic studies bloom. Proving a deterrent effect may help the politics from my perspective by undermining the opponents withthe general public, and I don't want to minimize that, but otherwise it doesn't really mean a lot to me, and I suspect (Cass Sunstein notwithstanding) that it doesn't mean a lot to the moralists among the opponents, either.