Thursday, December 29, 2005

A Different Argument Against the Death Penalty

Opponents argue that killing people is wrong, or that killing innocent people is wrong and even the best legal system sometimes makes mistakes, or that a system that sometimes makes mistakes ought to limit itself to mistakes that can be corrected—and letting a wrongfully convicted defendant out of prison is easier than bringing him back from the dead. I find all three arguments unconvincing.

If killing people is wrong, we should have no military—and although pacifists accept that position, neither I nor most opponents of the death penalty agree. Killing innocent people is a bad thing, but in a world of uncertainty it cannot be entirely eliminated. Every driver on the road faces some small risk of a heart attack, epileptic fit, or stroke that would convert his car into a lethally unguided missile. It does not follow that nobody should drive.

If the death penalty deters more effectively than other punishments, then using it lets us either deter more crimes and so reduce the number of innocent victims who are killed or raise our standard of proof while maintaining deterrence, convicting fewer people, hence fewer innocents, but punishing them more severely. Executing an innocent defendant is a bad thing—but perhaps less bad than letting two innocent victims be killed or locking up three innocent defendants for the rest of their lives.

The irreversibility of the death penalty is good rhetoric but bad argument. It is true that a mistaken imprisonment can be in part corrected, while a mistaken execution cannot. But in practice the criminal justice system very rarely discovers its mistakes—and an unjust imprisonment that is never recognized as such is just as irreversible as an unjust execution.

There is an argument against the death penalty that I find more convincing than any of these—one which is, as it happens, also an argument for it. Executing people is cheap, imprisoning them expensive. This is not true in the U.S. at present, because sentiment against capital punishment has resulted in elaborate and time consuming procedural constraints on its implementation. But in a society that is serious about capital punishment, hanging someone costs a lot less than housing, guarding and feeding him for fifty years.

In a legal system run by benevolent philosopher kings, cheap punishments would be an unambiguous benefit. In our world, it means that a large cost—the loss of a life—is imposed on someone else by people who bear a very small cost for doing so. Having A make a decision most of whose costs are born by B is a recipe for bad decisions—in this case lethally bad.

The point is nicely illustrated by a famous, but probably apocryphal, historical incident. During the Albigensian crusade, one of the leaders supposedly asked the Papal legate how they were to distinguish the heretics in the city they had just taken from the good Catholics who happened to be their neighbors.

“Kill them all. God will know his own.”

The risks of cheap punishments.

For a broader and more academic discussion, see my "Why Not Hang Them All: The Virtues of Inefficient Punishment," Journal of Political Economy, vol. 107, no. 6 1999 pp. S259-269. There is a webbed version in my Law's Order (search for "Why Not Hang Them All).

[I have ignored a fourth argument against the death penalty—that it doesn’t deter—since I believe the factual claim is probably false. That would be—for the past twenty years or so has been—a longer argument.]

54 Comments:

At 10:21 AM, December 29, 2005, Anonymous albatross said...

David,

I think there's an additional, basically moral argument against the death penalty, which says that killing someone except in self defense is wrong. This isn't subject to any kind of empirical validation, but I think that's really what many objections to the death penalty come down to.

To draw an analogy, suppose I plan to deter murders even more effectively by crucifying convicted murderers. It's quite likely that a very public, horribly painful death would be effective deterrence. The reason I wouldn't want to do that is that I think torturing people to death is wrong. I think this is one of those cases where summing up utility doesn't get us to the complete answer.

 
At 11:14 AM, December 29, 2005, Blogger John T. Kennedy said...

Your use of the word efficiency that passage of Law's Order is somewhat confusing.

If a punishment produces more costs than benefits then how was it efficient in the first place. Aren't you really simply saying that context was dropped in the first calculation of costs and that all costs were not considered?

 
At 12:40 PM, December 29, 2005, Anonymous rick said...

Let us assume that it is really really cheap to kill guilty people using the death penalty, and really really expensive to keep them alive in jail for life. By your reasoning, we should kill the guilty people (presuming their crime is generally considered to deserve the punishment) by the death penalty until the costs outweigh the benefits.


Seems like a deeply immoral, backwards, world to live in. But if $$$ is all that matters....

 
At 12:54 PM, December 29, 2005, Anonymous Aaron Krowne said...

I find two arguments compelling:

The first of them resurrects (heh) one of the ones David rejects: that errors in prosecution imply we should not resort to the death penalty.

David suggests that mistakes are rare, so this argument really isn't compelling. Putting aside for a minute this empirical claim, which I don't think anyone can confirm or deny (I have heard that something like 1/3 of death row convictions are extremely tendentious, not in least part because they date back to an extremely racist era), I still think there is another take that leads to the opposite conclusion.

In principle, there can always be false positives in death penalty convictions. I find this flies in the face of the principle of inviolability, which I think in fact underlies much of the libertarian ethics that this country is founded upon (and rightfully so).

This principle states that you have a natural right not to be imperiled, by no fault of your own. This goes even for lofty principles of "deterrence"--which, taken too far, becomes an essentially socialist concept ("We can lower the crime rate in society by making examples of people who we think committed similar crimes"). The "breaking a few eggs" side of making this justice omelette is allegedly justified because if the state is seen as waivering, the system evolves to something costly and lengthy as it is in the US now.

My second argument is that the power to kill its own citizens is a dangerous power to give the state, especially considering that it is entirely unnecessary. Once a murderer is off the streets, they can't very well murder more people. When we give the state the power to kill, yes, we in some measure imperil our (innocent) selves, because it is possible we will be falsely convicted some day. But even worse, what happens when unethical laws are passed or corrupt administrations take control? Then this power becomes a weapon for the state to do, plainly speaking, evil. Better to at least make it a crime for them (interestingly, this is also an argument that making killing illegal for the government is a deterrent against mortal crimes committed by its agents).

 
At 1:05 PM, December 29, 2005, Anonymous Aaron Krowne said...

David, upon reviewing the previous post (2nd amendment), I have noticed you essentially made the same argument I made in my last post here, which I believe is actually the most compelling practical argument against the death penalty (inviolability perhaps being the most compelling theoretical argument).

Why don't you think that argument--more powerful government--applies here?

It seems to me the same arguments about seeing justice done and deterring criminals would apply to criminals in government.

 
At 1:11 PM, December 29, 2005, Anonymous Hannes Bretschneider said...

If I understand you correctly, capital punishment in the US is not a problem, since its costs are actually higher than the costs of imprisonment and because of that judges will only sentence people to death if the evidence is so overwhelming that the law leaves no other possibility.
But most obviously there must be other intentions behind capital punishment if it's being kept in place despite its high costs.

 
At 2:27 PM, December 29, 2005, Anonymous Tom Courtney said...

I don't know that it would impact your argument much, but there is a way in which an accident in death penalty application feels different than an accident on the road: in the first case, the intent was to kill the person, and in the second it was to get from point A to point B. If I'm trying to do something dangerous, and screw up, I'm generally held more accountable than if I am doing something fairly safe, and an accident occurs.

 
At 2:37 PM, December 29, 2005, Blogger Anders said...

The death penalty is not a matter of simple killing. It is killing commited not as an act of defence (which is what armies are for), nor accidentally (which is what happens on the road), but only for the pleasure of exacting revenge. I find it obvious that killing for pleasure is wrong, whether it is done by an individual or by the state.

Death is, obviously, the ultimate violation of freedom. If there is an equivalent alternative to the death penalty, the state is obliged to choose that latter option, as it is takes away less human liberty.

Fortunately, there are plenty of good options to the death penalty, in the form of life- or long-time imprisonment. The death penalty does not offer any benefits when compared to these punishments. In particular, it is no greater a deterrent than imprisonment, as a simple comparison of justice systems and crime rates clearly shows. Around the world, in countries rich and poor, great and small, justice systems without the death penalty serve quite as well, if not better, as those that do have capital punishment on the books.

 
At 2:43 PM, December 29, 2005, Blogger David Friedman said...

Rick says:

"Seems like a deeply immoral, backwards, world to live in. But if $$$ is all that matters...."

I don't see what dollars have to do with it--costs and benefits would still exist in a world with no money only barter. They still exist for Robinson Crusoe with neither money nor barter.

The cost of keeping someone in prison is that other people have to work to produce food for him, or go hungry so that he can eat the food they otherwise would have eaten, or in other ways sacrifice things of value to them. Other people have to build a prison instead of building houses for themselves, or spending their time reading books or sitting on the beach.

The point I'm making at the moment isn't about the death penalty, it's about costs. Thinking of them as a flow of money is wrong and confusing--the government can always print more money. Costs come down to someone not having something he values, doing something he doesn't want to do, and the like.

 
At 2:45 PM, December 29, 2005, Blogger John T. Kennedy said...

Anders,

I think it's clear that Friedman contemplates the death penalty here with no thought of pleasure in revenge.

 
At 2:46 PM, December 29, 2005, Blogger David Friedman said...

Aaron writes:

"David suggests that mistakes are rare, so this argument really isn't compelling. "

I didn't suggest that it is rare for courts to make errors. I suggested that it is rare for them to discover their errors and correct them. If the error is never discovered, the fact that if discovered it could have been in part corrected (true of imprisonment but not execution) doesn't matter.

 
At 3:40 PM, December 29, 2005, Anonymous Dave Orr said...

David writes:

I didn't suggest that it is rare for courts to make errors. I suggested that it is rare for them to discover their errors and correct them. If the error is never discovered, the fact that if discovered it could have been in part corrected (true of imprisonment but not execution) doesn't matter.

Does it matter, then, that the number of wrongful convictions found and addressed has gone way up recently, largely due to The Innocence Project?

Also, just because we haven't done a good job of fixing mistakes in the past doesn't mean we won't devote effort to it in the future. But that will only be worthwhile if we keep our options open by not executing prisoners for whom there could be any question.

 
At 5:02 PM, December 29, 2005, Blogger Anders said...

"I think it's clear that Friedman contemplates the death penalty here with no thought of pleasure in revenge."

The death penalty serves no other purpose.

The consensus from those past 20 years of debate now referred to in the post scriptum (post postum?) is that the death penalty has no deterrent effect. If anything, I would extend that period to at least the past century's worth of debate and experience -- the death penalty has been up against the ropes for quite some time now.

 
At 5:47 PM, December 29, 2005, Blogger rickthefightguy said...

The death penalty certainly stops the criminal from comitting crime again. That is not revenge, nor deterrance

 
At 7:47 PM, December 29, 2005, Blogger Anders said...

Any number of punishments can prevent a criminal from committing another crime. The death penalty is only marginally more effective prevention than lifetime imprisonment, for example. So marginal, in fact, that I would wager that it is about equally rare for a life-without-parole prisoner to escape and commit another crime as it is for an innocent man is executed.

 
At 8:12 PM, December 29, 2005, Blogger David Friedman said...

Anders writes:

"The consensus from those past 20 years of debate now referred to in the post scriptum (post postum?) is that the death penalty has no deterrent effect."

That is almost the opposite of my reading of the evidence. It isn't my field, but I think the most you can reasonably claim on your side of the argument is that the question is still open. I gather from conversation with a colleague more up to date than I am that some recent work, using data from the period after the death penalty went back into use, shows deterrent effects on the scale of Ehrlich's original estimates.

 
At 11:48 PM, December 29, 2005, Blogger Charles N. Steele said...

David, I think you are mistaken in calling "irreversibility" a bad argument. Once killed, a wrongly convicted person is beyond hope. But so long as s/he lives there's potentially an opportunity to reverse the error and let this victim enjoy what remains of her/his life.

You argue that "in practice" it rarely (but sometimes) happens; but "in practice" it is also the case that life in prison is less costly than execution (in the U.S. context)...so the lower cost option (life in prison) also increases probability of mistakes being corrected.

If life in prison is a less costly option that permits the wrongly convicted a greater chance of overturning the error, what's the problem? I find the argument convincing.

It may be rare for mistkes to be correcetd, but perhaps you've simply made a case for establishing additional safeguards for finding mistakes.

Incidentally, I think such mistakes aren't simply random, arising from uncertainty, but tend to occur because of racial or other biases. A justice system ought to be constructed so as to be able to more easily undo false convictions of this sort.

 
At 4:36 AM, December 30, 2005, Anonymous matt said...

The hope would be that by raising the price of punishment we create an incentive on the part of government to only punish when it is very sure punishment is merited. Unfortunately, I don't see who it is in the process who has an incentive to minimize costs: Prosecutors have an incentive to maximize their conviction rate, prisons have an incentive to maximize their budget, politicians have an incentive to appear tough on crime, etc. Who is it who's supposed to have their behavior changed by high prices, and what political institutions are supposed to respond to it?

 
At 4:36 AM, December 30, 2005, Anonymous Famousringo said...

A little thought experiment on the deterrent effect of the death penalty.

If you were ever contemplating killing somebody, would you ever say that it was worth risking 25 to life imprisonment but not worth risking death?

An act of murder is a serious gamble. Anybody willing to stake 25 years or more of freedom on such a gamble is either expecting to win, or doesn't think they have much to lose.

 
At 7:38 AM, December 30, 2005, Blogger Russell said...

Presumably the death penalty has no deterrent effect on murder/suicides.

 
At 8:44 AM, December 30, 2005, Blogger David Friedman said...

FamousRingo writes:

"If you were ever contemplating killing somebody, would you ever say that it was worth risking 25 to life imprisonment but not worth risking death?"

If you were thinking of buying a car, would you ever say that it was worth price P but not price P+ten cents?

The intuitive answer is "no," as in your case. It follows that demand elasticity for cars is zero and, by induction, that you would be equally willing to buy a car at any price, from zero to infinity.

Which illustrates the problems of trying to use intuition to deal with a continuous process, a point demonstrated some years back by Xeno.

 
At 8:48 AM, December 30, 2005, Blogger David Friedman said...

Matt asks:

"Who is it who's supposed to have their behavior changed by high prices, and what political institutions are supposed to respond to it?"

That would depend on the society. England in the 18th century made essentially no use of imprisonment for serious crime--I think because it was costly. As some evidence, consider that the Mediterranean powers switched from executing offenders to sentencing them to the galleys at the point when slave rowed galleys became a useful technology (for more details, see my piece on 18th c. English criminal law, webbed on my site).

In our society, taxpayers object to high taxes but want government provided benefits. That creates pressure on elected politicians to find ways of cutting costs that don't have negative effect on politically influential groups.

 
At 9:03 AM, December 30, 2005, Anonymous Anonymous said...

I came to oppose the death penalty for reasons similar to those your argument depends on. The turning point for me was the passage of the mid-1990s crime bill which allowed the death penalty in many categories of federal crimes that formerly had not been capital crimes. I believe one provision supposedly targeting drug kingpins defined "kingpins" in such a way that small-time drug dealers could end up so classified, if a zealous prosecutor took full advantage of the law.

I came at that point to believe that legislators sometimes use capital punishment as a gambit in the competition for votes by "getting tough on crime", without proper regard for the costs and benefits. Of course it costs very little to pass an unenforced, symbolic bill. But now it is the law, which raises the possibility, however slight, of eventual routine application of these draconian penalties. This could be an exciting and budget-enlarging move for officers of law-enforcement agencies and the criminal justice system, as they face determined criminals prepared to fight to the death, but I don't see how it goes to actually making me safer.

I would rather take away this bargaining chit than worry about such abuse.

 
At 4:03 PM, December 30, 2005, Anonymous Famousringo said...

Well, since you chose to sidestep my challenge that you put yourself in such a decision making position and instead reduced the question to marginal utilitarian decision making, perhaps the statistics presented on this site will provide some more concrete evidence on the deterrent effect of a death penalty which your economic mind will find more acceptable:

http://www.deathpenaltyinfo.org/article.php?scid=12&did=169

Of course, there are bound to be more factors than simply the presence or absence of a death penalty effecting murder rates, but shouldn't an actual deterrent effect be demonstrated before you assume that it's one of the benefits of a death penalty? It seems your assumption that there is a deterrent effect is even more intuitive than my suggestion that there is none.

 
At 4:19 PM, December 30, 2005, Blogger Scott said...

Well done, Professor--what a delightfully fresh spin on the topic.

 
At 6:08 PM, December 30, 2005, Blogger zoiprof said...

Some dozen years ago or so I saw a network news reporter doing a report on the death penalty. Most of the piece involved reasons to ban capital punishment, but one part was particularly entertaining.

The reporter went into the rural part of Georgia and asked a rather simple looking man whether he was in support of the death penalty. When the man answered yes, the reporter mentioned that it costs 1 to 2 million dollars to execute a criminal to which the man replied, "We consider that money well spent."

If I had had a month to come up with a reply to the reporter, I don't think I could have come up with anything half as good.

 
At 9:34 AM, December 31, 2005, Blogger Todd Mitchell said...

David Friedman writes: "The cost of keeping someone in prison is that other people have to work to produce food for him, or go hungry so that he can eat the food they otherwise would have eaten, or in other ways sacrifice things of value to them."

No. Most prisons are self-sufficient in terms of their day to day operations (virtually all labor, minus security, is inmate). Prisons can also be built by inmate labor as well, thereby minimizing the construction argument.

Friedman: Anders writes:

"The consensus from those past 20 years of debate now referred to in the post scriptum (post postum?) is that the death penalty has no deterrent effect."

"That is almost the opposite of my reading of the evidence. It isn't my field, but I think the most you can reasonably claim on your side of the argument is that the question is still open."

Occasional panel studies have produced a statistically insignficant deterrent effect from time to time, but most penologists agree that the death penalty has *never* had a general deterrent effect.

As the old joke goes, if the death penalty were a deterrent, the last homicide would have been committed thousands of years ago.

 
At 11:02 AM, December 31, 2005, Blogger James Z. Smith said...

Capital punishment DOES deter murder. Consider the Emory University study cited in my June 2005 post on the subject.

Lost-Tooth Society

 
At 2:41 PM, December 31, 2005, Anonymous Anonymous said...

I'm not sure how the argument that deterrence fails stands up. Murders are still committed but has anybody done a survey where people said they desired to murder but were deterred by the possibility of execution? Have minds been read? To say that deterrence doesn't work is to negate fear has a factor,relegate punishment as inconsequential, and stand much of philosophy on it's head. To further say that the state doesn't have the right is pure assertion not argument. The state has an obligation to punish,even unto death. Who is that obligation to? The victims family first, primarily, and to society secondarily. Which is probably why the state commenced executions in the mists of history, to prevent bloodbaths and familial wars. I have noticed over the years that expressions of relief and and a degree of closure are more often than not expressed by families of murder victims. I don't think that I for one would tell them about what the State may not do. Economic considerations in a country that seeks desperately to squander it's money don't require much comment.

 
At 3:38 PM, December 31, 2005, Blogger David Friedman said...

FamousRingo points to a web site which shows murder rates higher in states with the death penalty, which he apparently considers convincing statistical evidence against deterrence.

The most obvious alternative explanation is that high murder rates create political pressure for capital punishment.

That point--that correlation might be due to causation in either direction--is usually covered in elementary statistics courses. Presumably FamousRingo also believes in never going to the hospital--death rates in hospitals being much higher than in most other places.

Todd Mitchell writes:

“Occasional panel studies have produced a statistically insignficant deterrent effect from time to time, but most penologists agree that the death penalty has *never* had a general deterrent effect.”

Econometric studies, on the other hand, multiple regressions using time series and cross section data, have repeatedly found deterrent effects—statistically significant and large. Ehrlich did the first such some decades ago, setting off a statistical argument that is still running.

“As the old joke goes, if the death penalty were a deterrent, the last homicide would have been committed thousands of years ago.”

A joke that demonstrates a striking ignorance of what “a deterrent” means.

 
At 7:35 PM, December 31, 2005, Anonymous Brooks Lyman said...

I always thought that it was Cardinal Richelieu (at the siege of La Rochelle) who made the quip about killing them all and letting God sort them out, but quotes are sometimes slippery things and I could be wrong.

As for the main subject, one could alternatively argue that life in prison may well be a far worse punishment, i.e. "cruel and unusual," than a painless death penalty.

In addition, "life" is often not really for life, and paroling a violent sociopath because of his good behavior in prison may simply be releasing him to prey on society again, which is certainly a failure of government to perform one of its main functions - the protection of its citizens from criminals.

There are, of course, many valid arguments on both sides of this question. My own feeling is, that if we are absolutely sure of guilt and if the execution is done in a painless manner, then the death penalty can be applied - otherwise not.

 
At 8:13 AM, January 02, 2006, Blogger Todd Mitchell said...

David Friedman writes: "Econometric studies, on the other hand, multiple regressions using time series and cross section data, have repeatedly found deterrent effects—statistically significant and large. Ehrlich did the first such some decades ago, setting off a statistical argument that is still running."

It's been rather settled in penology for many years that the death penalty displays no sign of a general deterrent effect. I'm not aware of any study that's shown a "large" or "statistically signinficant" argument to the contrary. And as I said earlier, panel studies are not really the best measure of "deterrence", a rather esoteric variable to begin with.

I wrote: “As the old joke goes, if the death penalty were a deterrent, the last homicide would have been committed thousands of years ago.”

"A joke that demonstrates a striking ignorance of what “a deterrent” means."

Only to those still clinging to the antiquated notion that the death penalty is a "deterrent", apparently.

 
At 9:56 AM, January 02, 2006, Anonymous RK said...

“… cheap punishments would be an unambiguous benefit. In our world, it means that a large cost—the loss of a life—is imposed on someone else by people who bear a very small cost for doing so. Having A make a decision most of whose costs are born by B is a recipe for bad decisions—in this case lethally bad.”

I think this misses a very serious point. What if enough Bs are killed so that Bs’ people—rightly or wrongly—begin to agitate and declare themselves no longer subject to A’s laws (because they say executions unfairly target Bs)? B’s society, then, would become extra-legal -- effectively outside the control of A -- and law would be controlled by gangs, vigilantes, etc, which would obviously lead to a greater, and more arbitrary, loss of life. There is, I’m saying, an ideological component to the death penalty that must be factored in when judging the trade offs. If enough people of whatever particular persuasion believe (again, rightly or wrongly) that the Philosopher King is targeting their group, the detriment in political rebellion or secession would greatly outweigh the benefit of cheap punishments.

 
At 2:07 PM, January 02, 2006, Blogger EliRabett said...

The Chinese government obviously agrees with you

 
At 3:39 PM, January 02, 2006, Blogger David Friedman said...

Todd Mitchell writes:

"I'm not aware of any study that's shown a "large" or "statistically signinficant" argument to the contrary."

That tells us more about you than about the question of whether the death penalty deters. A or so on Google turned up a page summarizing some of the recent work.

http://www.cjlf.org/deathpenalty/DPDeterrence.htm

The abstract of the first piece starts:

"Recent evidence suggests that capital punishment may have a significant deterrent effect, preventing as many as eighteen or more murders for each execution."

The piece is coauthored by Cass Sunstein, not precisely a right winger.

 
At 5:21 AM, January 03, 2006, Blogger melodius said...

An interesting thought experiment is to imagine what capital punishment would look like in a stateless society.

A murderer wouldn't be executed if the family of the murdered person objected, e.g. because they (and the victim) were morally opposed to capital punishment, or if they would rather have the murderer being able to work to pay compensation rather than going out with a bang.

Moreover, if it turned out that the person you executed was innocent, you'd have, at the very least, to pay compensation to this person's family or even be executed yourself.

In other words, the death penalty as it now exists can only be considered right if you, consciously or not, believe in the divinity of government.

 
At 6:16 AM, January 03, 2006, Anonymous johnt said...

Melodius, A perfect non sequiter of a post! Private non-state punishment may cause a mistake, ergo, the supporters of capital punishment believe in the divinity of government. How does one entity's mistake cancel out the possibility of another entity also making a mistake? If you are suggesting that proponents of the death penalty believe, with a religious fervor yet, that the State doesn't make mistakes you are assuming too much. The criminal justice system on either side of guilt or innocence is imperfect. Maybe O J Simpson might inform us as to how the flip side of guilt and execution works, if only he would.

 
At 6:51 AM, January 03, 2006, Blogger melodius said...

johnt, you completely missed the point, probably because I was too concise.

The point is, if the government executes a person "by mistake", no-one is responsible. That certainly wouldn't be the case in a stateless society. Consequently, mistakes would probably be less frequent because when in doubt, people would err on the side of safety, i.e. non-execution.

Perhaps death-penalty supporters do not believe that the state does not make mistakes, but they do believe the state has a right to kill people with total impunity.

Also, you will have noticed that the will and/or the interests of the victims are not taken into account when the state decides to execute someone.

 
At 8:29 AM, January 03, 2006, Blogger Francisco said...

The only really significant argument and that supersedes the merely moral-judicial one -the process is flawed and therefore it should be rejected- and the narrow-pragmatist one -costs exceed benefits- is of a political-philosophycal nature: we should not extend the right over individual death and life to the State. Accepting that the State can embody "popular sovereignty" to such an extreme, opens very wide the door towards an eventual and complete take over of superior collective rights by a burocratic and essentially repressive apparatus that tends spontaneously (given its own internal organizational logic) to tyrannically reign over society. When the State can legally kill and has the supreme (and exclusive)right to do so, the range of possibilities that this burocratic-judicial prerrogative will eventually transpire in legal political and ideological destruction of human life deemed "dangerous" to its own institutional interests, is very large. Actually, nowadays, the higher incidence of legal assassinations of minorities (mainly Blacks and Hispanics) by the State killing burocratic machinery, indicates that the Sate destroys human lives and eliminates individuals based on subjective and non-explicit ideological perceptions. The legal physical elimination of higher percentages of minority criminals is in general justified as the result of higher violent crime rates committed by Blacks and Hispanics. But this is a spurious argument that flies in the face of real facts. Statistics clearly indicate that if you are a member of a minority group that has committed a violent crime normally punishable by death penalty, you have a much larger probability of being legally killed than a member of the White community who committed a similar crime. The same applies to poor versus rich criminals -and across all ethnic groups. Thus, the State is by definition a burocratic structure that operates in the benefit of only certain sectors of society (the more powerful and affluent ones) and that excerts a veiled but very consisted biased institutional action against certain groups. Institutional discrimination is not a shortcomming of the State, but the very nature of its burocratic social mission and function. So giving such a powerful tool and supreme right to the State is not only dangerous, but outright suicidal in the long run.

 
At 9:15 AM, January 03, 2006, Blogger Todd Mitchell said...

David Friedman writes:
"http://www.cjlf.org/deathpenalty/DPDeterrence.htm

"The abstract of the first piece starts:

"Recent evidence suggests that capital punishment may have a significant deterrent effect, preventing as many as eighteen or more murders for each execution."

"The piece is coauthored by Cass Sunstein, not precisely a right winger."

Again, it clearly depends on what you're looking for. While more conservative sites like CJLF push studies showing a deterrent effect (small though they may be), the bulk of the academic evidence seems to weigh against the claim.
http://www.deathpenaltyinfo.org/article.php?scid=12&did=167

Ernest van den Haag, one of the leading scholars and proponents of the death penalty, even acknowledges that a "statisitical claim" showing deterrence doesn't really exist (but of course, for him, the probability that it might is reason enough to keep executing people).

http://www.pbs.org/wgbh/pages/frontline/angel/procon/haagarticle.html

I admire van den Haag, though I disagree with most of what he says. Howeever, his unequal justice v. equal injustice argument is compelling.

 
At 10:34 AM, January 03, 2006, Blogger David Friedman said...

Todd Mitchell wrote (about his claim that the death penalty doesn't deter):

"I'm not aware of any study that's shown a "large" or "statistically signinficant" argument to the contrary.""

After a minute or two of googling, I presented him with a page that cited a whole bunch of such studies. That would seem to tell us and him something useful about his views of the subject--that they are based on an almost total ignorance of the evidence for the side he disagrees with.

His response was:

"While more conservative sites like CJLF push studies showing a deterrent effect (small though they may be), the bulk of the academic evidence seems to weigh against the claim."

The small deterrent effect mentioned by the first piece cited in the page I found was eighteen murders deterred per execution. Putting that aside, note that Todd has abandoned his original claim, which was that all of the evidence was on one side--without ever conceding that it was wrong.

Todd supports his claim about "the bulk of the academic evidence" by pointing us at a web page by an organization that is clearly, judging by a little browsing of its site, opposed to the death penalty.

It is indeed true, as I said earlier in the discussion, that the argument is still going on and that not everyone involved is convinced that the evidence shows a significant deterrent effect. But that wasn't Todd's claim. He has shifted from claiming there is no evidence for deterrence to claiming that people who are opposed to the death penalty--and at least one person supporting it--find the evidence less than compelling.

 
At 10:51 AM, January 03, 2006, Anonymous johnt said...

Melodius, I don't think I missed your use of the word "divinity" nor did I miss in your second post the use of the word "impunity" , or do my eyes deceive me? You still assume too much. My turn, if you did undestand my post you would have detected doubt about the death penalty and the imperfection of the criminal justice system,hardly the base for divinity and impunity. Your assumptions carry you back to a primitive age and assign to cavemen a forebearnce and judgement which may, just may, be misplaced. Re your last para; on the odd chance that by "victims" you refer to those executed {do you?] the lack of consideration for said victims would be belied by the case of the late and somewhat lamented Tookie Williams, I daresay he received 25 years of consideration. Hardly a rush to execution. If however you are talking about the murderers victim,would not the trial and process itself be due consideration? Perhaps you were not concise enough.

 
At 12:12 PM, January 03, 2006, Anonymous johnt said...

Melodius, addendum, You refer to the victim as the one executed in error. But if that's the case consideration was given,no justification for a grevious error but hten a pristine early state is also capable of error, however tight the hypotheses.

 
At 1:30 PM, January 03, 2006, Blogger Todd Mitchell said...

David Friedman writes:

"Todd supports his claim about "the bulk of the academic evidence" by pointing us at a web page by an organization that is clearly, judging by a little browsing of its site, opposed to the death penalty."

Of course, mainly to counter the pro-death penalty site you linked as evidence that this is a real debate (which it isn't). The site I posted is more representative of the voluminous studies that exist that question the deterrence claim. For more information, I'd suggest reviews of the deterrence/death penalty literature which can be found in most undergraduate criminology textbooks, (those by Stephen Barkan, Larry Siegel and Sue Titus Reid spring to mind).

Even the most ferverent supporters of the death penalty (as I posted earlier in the work of Ernest van den Haag) have generally abandoned the argument that there is a deterrent effect. Nowhere have I said that research to try and establish the link has stopped. But as Sue Titus Reid writes: "the strength of the research reviewed rests not in individual studies but on the work taken as a whole. While it is impossible to to prove a negative, this failure to find a deterrent effect provides reason to believe that none exists." (2006:504)

Friedman: "It is indeed true, as I said earlier in the discussion, that the argument is still going on and that not everyone involved is convinced that the evidence shows a significant deterrent effect. But that wasn't Todd's claim. He has shifted from claiming there is no evidence for deterrence to claiming that people who are opposed to the death penalty--and at least one person supporting it--find the evidence less than compelling."

No, there's no "shift" going on here, David. The evidence presented doesn't hold up. You go back to Ehrlich, for example. Despite his claims from decades ago, his research never passed the replication test, which all social sciences demand. Most tests of his original research never produced a deterrent effect, and by the early 1980's his claims were dismissed. Still talking about his claims, 30 years later, doesn't indicate the "argument is still going on," though some cling to the idea nonetheless.

What I've maintained is that the "debate" concerning deterrence and the death penalty is one that most criminologists and penologists, whatever their stance on the death penalty, have dismissed as "myth" and "crime-control theology". And the weight of the research backs that up.

 
At 3:52 PM, January 03, 2006, Blogger David Friedman said...

So far as my argument with Todd, each of us has posted the URL of page with information on studies of the deterrence issue--readers are invited to read what each of us has posted, look at those pages and form their own opinions.

A bit of personal history ... . I got into the argument about fifteen years ago, when a colleague who was a very respected figure in the legal/criminological community told me that Ehrlich's work was terrible, that there was no evidence for deterrence, that Ehrlich had refused to provide other researchers his data, and that his results had not been replicated. I asked for evidence, he lent me a book edited by some friends of his.

I read the book--he obviously hadn't. It included one article by a researcher who had been given Ehrlich's data by Ehrlich and had replicated his results. It included lots of articles showing that punishment--not specifically the death penalty, since that wasn't what most of the book was about--deterred. The only material contra deterrence was the introduction by the editors, who offered various ways in which the evidence in favor of deterrence might be explained away--but provided no evidence to support their conjectures.

I reported all of this to my colleague. He, being the unusually reasonable and honest man that he was, conceded that he didn't actually know anything at first hand about the controversy. He was going on what he had been told by other people on his side of the death penalty debate, and he had believed it because Ehrlich's work was being used to support the reintroduction of the death penalty, a cause he passionately opposed.

Since then I have been disinclined to take the sort of sweeping statements that Todd, and other people on his side of the argument, like to make very seriously.

Especially people who start out by proposing that I should take, as substantial evidence that the death penalty doesn't deter, the fact that on average states with the death penalty have higher murder rates than states without it.

 
At 6:17 AM, January 04, 2006, Blogger Todd Mitchell said...

David Friedman writes: "Since then I have been disinclined to take the sort of sweeping statements that Todd, and other people on his side of the argument, like to make very seriously.

"Especially people who start out by proposing that I should take, as substantial evidence that the death penalty doesn't deter, the fact that on average states with the death penalty have higher murder rates than states without it."

I never actually made that argument, but the research on Brutalization has been better documented over the years than the research concerning a general deterrent effect, imo. Neither, however, is particularly appealing.

After years of studying capital punishment, my conclusion is that the only two arguments that support the death penalty are specific deterrence and retribution. Certainly we've never seen anyone come back from the dead (that we know of) to commit another crime. And the death penalty is most definitely about vengeance.

 
At 9:15 AM, January 04, 2006, Blogger David Friedman said...

Todd writes, in response to something I said:

"I never actually made that argument"

My mistake. I was, at least implicitly, attributing to you an argument made by FamousRingo.

Mea culpa.

 
At 1:22 AM, January 05, 2006, Blogger melodius said...

johnt, by "victim" I of course do not mean the criminal...

As for the state's "divinity", well, if you think that an abstract entity has dominion over the individual, including the right to take his life, I think that is a fair description. Anyway, the idea is more important than the word.

 
At 12:25 PM, May 31, 2007, Anonymous Anonymous said...

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At 1:24 AM, August 12, 2007, Blogger Jonathan said...

The deterrence argument seems messy and unclear to me, and certainly controversial. There's considerable historical evidence that some people are deterred by the prospect of punishment, but others are not deterred no matter how ghastly the punishment.

The real arguments for the death penalty are that it's cheap and it's 100% effective: it prevents the criminal from committing any further crimes. People put in prison can commit further crimes while in prison (yes, it happens), and after they're let out. In practice few people are genuinely kept in prison for life.

I appreciate the argument that the death penalty may be too cheap. For this reason, any organization that executes people should be obliged to pay really heavy compensation to next of kin whenever an execution is found to have been wrongful. You can't compensate a man who has been wrongly executed, but you can at least make it expensive.

This being said, I'm not a committed supporter of the death penalty, but it's an interesting subject for argument.

 
At 5:16 PM, May 07, 2008, Blogger Nivas said...

Are you all Europeans? I ask this because you are all irrationally attacking the death penalty. Do you remember World War II and the Holocaust? Many of the German leaders who authorized the Holocaust were executed in war trials. If Europeans had their way, these mass murderers would have been sentenced to life in prison. This doesn't make any sense. First of all, the death penalty prevents murderers from ever killing innocents again. It is possible to escape from prison, and I, for one, do not think that a murderer should ever be able to walk free to kill others later. Also, the death penalty saves millions of dollars to the government, as it costs over five million dollars for life imprisonment for fifty years, whereas the price for an execution is two million dollars. The U.S. government already has a nine trillion dollar debt. I would rather see these millions of dollars go toward relieving this debt than to spare the lives of murderers and traitors to our nation. As for killing being morally wrong, since when has that ever stopped anyone from doing it? Innocent lives must be sacrificed so that others can live. And don't you religious folks believe in a life after death? Oh, wait, I forgot, your life after death for a murderer is to burn down under forever, a sentence worse than execution. You should fix your religion before you try fixing the government. As for deterrence, there is nothing people fear more than death. Nothing. Many murderers have been in prison before, and it is nothing new to them. They dread it, but they do not fear it as much as they fear death. It's a good thing the Americans got to Saddam Hussein before the British, or he'd have escaped from prison already with the help of his supporters. Mass murderers like him display the worst in human nature, and their denial of others' right to life denies them their own right to life. This comment is probably offensive to some people, but I don't regret it. Maybe your country should dismantle its military and give up its nuclear arsenals before you start criticizing the death penalty. A world without violent deaths is an ideal which humans can never come close to achieving. We can try, but it will end in failure and our own minds could become corrupted in the process.

 
At 6:47 AM, January 21, 2009, Blogger wow power leveling said...

This comment has been removed by a blog administrator.

 
At 3:38 PM, May 27, 2012, Anonymous Anonymous said...

if you go to jail for murder, you shouldnt be put to death, you should be amputated. think about that for a second, you cant murder people with no limbs, and by chance if the JUSTICE SYSTEM made a mistake, which all humans do from time to time, at least they still have there life. ontop of that think about the crime known as robery. say someone steals so much its undoubtable that during there life someone had to die from lack of money, like the guy robs a whole country or contenent or many countries and contenents, lets just say he robs everyone in the world! altho highly unprobable, its easy to see without hands and legs he wont want money anyways, and if hes not guilty becuase of an error, hes in a prison with other people that have no hands and legs. i dare someone to argue against this theory. all it is is life. more life. life life life, give them life. give the filthiest criminal life, give the innocent man who was wrongly accused life, if you take no life, you dont have to be scared of hell. in god we trust?

 
At 7:33 AM, September 28, 2012, Anonymous Mike said...

There is no worse crime then murder. Excluding treason. Justice should be defined as equality for the crime you have committed. If you push someone and they fall. You should have punishment that is equal to the damage you have done to that person. If someone murders someone else and only gets life in jail. Then how is that justice?

 

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