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.]

A Different Argument for the Right to Bear Arms

Supporters usually offer one or more of three arguments: The Second Amendment to the Constitution, the need for a last ditch defense against a tyrannical government, or deterring and preventing crime. The first of these is relevant to a U.S. court, although current courts do not seem to find it very convincing, but less relevant to the rest of us. If the right to bear arms is a good thing, we should have it even if it is not in the Constitution. If it is in the Constitution but a bad thing, then we should repeal the 2nd Amendment and, until we do, interpret it as narrowly as possible.

Two hundred years ago, the second argument was persuasive. As Cromwell had demonstrated a century and a half earlier, a large professional army could create a military dictatorship. A large militia meant that you could manage with only a small professional army. If the army got uppity, its superior quality would be outweighed by the militia’s vastly superior numbers.

In the centuries since, both the relative size of the military and the gap between military and civilian weapons have greatly increased, making that solution considerably less workable. In my view, at least, conflicts between our government and its citizens in the immediate future will depend more on control of information than control of weapons, making unregulated encryption, as I have argued elsewhere, the modern equivalent of the 2nd Amendment.

I made the theoretical argument for possession of concealed weapons as a deterrent to crime in a chapter of my (webbed) Price Theory. The empirical argument was made later in an article by John Lott and David Mustard, setting off an extended scholarly (and sometimes unscholarly) controversy. While I still find the theoretical argument convincing, the empirical question appears to be still open.

There is another, and perhaps better, argument for private possession of firearms. If the population is disarmed, protection against crimes is provided mainly by the police. People very much want not to be victims of crimes, so if protection depends on the police there will be public support for expanding the powers of the police in order to better protect us. The result is a more powerful government, which I think a bad thing. Given the current government, I would expect that argument to appeal to many people who find the first three unconvincing.

Tuesday, December 27, 2005

Does the First Amendment Ban Public Schools?

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…

In the two centuries since it was written, the original language of the First Amendment has been expanded in two directions. The Doctrine of Incorporation holds that the XVth amendment imposes the restrictions of the Bill of Rights on the states. And modern courts expand “establishment” to cover not only established churches—which existed in England and some of the states when the Constitution was drafted--but any violation of religious neutrality, giving us the doctrine of separation of church and state.

The judge who recently held it unconstitutional for public schools to be required to teach the theory of intelligent design correctly argued that doing so would be to support a particular set of religious beliefs—those that reject evolution as an explanation for the apparent design of living creatures. His mistake was not carrying the argument far enough. A school that teaches that evolution is false is taking sides in a religious dispute—but so does a school that teaches that evolution is true.

The problem is broader than evolution. In the process of educating children, one must take positions on what is true or false. Over a wide range of issues, such a claim is either the affirmation of a religious position or the denial of a religious position. Any decent scientific account of geology, paleontology, what we know about the distant past, is also a denial of the beliefs of (among others) fundamentalist Christians. To compel children to go to schools, paid for by taxes, in which they are taught that their religious beliefs are false, is not neutrality.

Or consider history. The spread of Islam in its first few decades is one of the most extraordinary historical events known to us. When Mohammed left Mecca for Medina, the Arabs were bit players in local politics, allies of one or the other of the two great powers of that part of the world. Within a generation, Muslim Arabs had conquered all of the Sassanid empire and much of the Byzantine. It is rather as if, between 1960 and 1980, Guatamala had annexed the U.S. and a considerable chunk of the USSR.

The Moorish political scientist Ibn Khaldun, writing about six hundred years ago, offered a simple explanation: The expansion of Islam was a miracle. Allah put courage in the hearts of the Arabs, fear in the hearts of their enemies. What could be more obvious? A Muslim teaching the relevant history would give that explanation; I would not. He is claiming Islam is true, I am claiming that it is false. Neither of us is, or should be, neutral.

My conclusion is that the existence of public schools is inconsistent with the First Amendment. Their purpose is, or ought to be, to educate—and one cannot, in practice, educate without either supporting or denying a wide variety of religious claims.

Robot Prevarication

“An agent will be with you shortly …. . … your call will be answered in no more than 75 minutes.”

(United Airlines lost baggage number, automated)

December 26th must be a difficult day for the airlines, but they could at least have the courtesy not to tell the customers whose bags they have lost something that their next sentence will show to be a lie.

Sunday, December 25, 2005

Faith Based Science

Despite the claims of its critics, Intelligent Design is indeed a scientific theory that can be-- indeed is--contradicted by evidence. Examples are the human appendix and the inverted construction of the human retina—bad design with good evolutionary explanations.

The real objection to Intelligent Design is not that it is not a theory, nor that it is a theory that we have reason to reject. The real objection is that its supporters are driven by religious, not scientific, motives. Somewhere in the world there must exist someone who was persuaded of its truth by scientific arguments—but looking at those arguments makes it clear that they were generated by people who knew what conclusion they wanted and were doing their best to fudge up reasons to believe it.

My first post in this blog discussed another example of faith based science--Nuclear Winter. Its scientific credentials were a good deal better than those of Intelligent Design. But it was clear from the sales campaign, at a point when the scientific basis was still very shaky, that it was a theory propounded by its supporters for a non-scientific motive. The campaign for nuclear disarmament had gotten a lot of mileage out of the claim, almost certainly false, that fallout from a nuclear war would wipe out life on earth, or at least human life. Nuclear Winter provided a new argument designed to reach the same conclusion—one that might even be true.

Quite a lot of environmentalism fits the same pattern. The economic, biological and climatological arguments--about global warming, species extinction, pollution, and the like--are sometimes right, sometimes wrong. But the driving force, for a lot of those making those arguments, is the essentially religious belief that natural is good.

As evidence, consider how few in the environmental movement are willing to support nuclear power. Nuclear reactors are the one source of power that provides a plausible alternative to fossil fuels—a way of generating electricity almost anywhere without producing CO2 or consuming fossil fuels, and doing it at a cost not wildly higher than the cost of coal fueled generators. They thus provide at least a partial solution to what environmentalists claim are two of the big problems—depletable resources and global warming.

A few environmentalists accept that argument—most, by casual observation, don’t. The reason is clear. Nuclear reactors are as unnatural as you can get—a symbol of the evils of high technology, used as such for decades by many of the same people pushing environmentalism.

The risks of faith based science.

Monday, December 19, 2005

Research for someone else to do

Project I: There is one critical fact about the criminal justice system that nobody knows--the rate of false positives. Of people convicted, how many are innocent? Opinions about issues such as the death penalty, plea bargaining, admissable evidence, and much else depend on that fact. So far as I know, there is no serious research that would let us estimate the rate--only anecdotal evidence.

I have a solution to that problem. Find a jurisdiction friendly to research. Identify all convictions in that jurisdiction from before DNA testing for which tissue evidence survives, such that testing it should provide strong evidence for or against guilt. Test all of it--or if that exceeds your budget, a random sample. See how many of those convicted turn out to be innocent.

It isn't a perfect test, of course, since suitable cases are not a random sample of all cases. But it would give us at least a first approximation of an answer. If the rate turned out to be one in a thousand, the case for the death penalty (and many other things) would be a lot stronger than if it turned out to be one in three.

Of course, a good deal of such testing has been done by innocence projects around the country. But it focusses not on a random sample but on prisoners whom there is good reason to suspect are innocent.

Project II: Low volume toilets are supposed to save water. They also, at least in my experience, tend to get stopped up more than ordinary toilets. Someone should do a statistical study relating the fraction of low volume toilets in an area to both water usage and expenditures on plumbers. Assuming water is saved--the process of getting a toilet unstopped can require multiple flushes--it might turn out to be very expensive water.

And yes, this was written after yet another session applying a plumber's snake to a low flow toilet.

Sunday, December 18, 2005

Cohabitation and Divorce

"Paradoxically, though, the choice of marriage preceded by cohabitation apparently attracts some couples who are less committed than others to lifelong relationships, since these marriages end in divorce at a far higher rate than those not preceded by cohabitation."
(Margaret Brinig, From Contract to Covenant)

Cohabitation before marriage provides a couple information about their ability to live happily together. That ought to make marital mistakes less likely and so lead to a lower chance of divorce. The evidence, however, goes in exactly the opposite direction. Brinig's explanation is that cohabitation makes divorce less likely, but the sort of people who cohabit are less likely to stay married than the sort who don't, and the second effect outweighs the first.

It is a possible explanation, but I am not sure it is the correct one, and she offers no evidence for it. I have some data of my own, although the sample size is a bit small. My first marriage was preceded by cohabitation and lasted about four years. The second was not, and has been going for more than twenty.

On the basis of that experience, I offer two alternative explanations:

1. Humans, like some species of birds, pair mate--not exclusively, but as an important element in our reproductive strategy. Part of what makes that workable is a link between sexual activity and our emotions, hardwired by evolution. Sleeping with someone, especially on a regular basis, creates emotional bonds. Breaking them can be hard. Those bonds, once created, may result in your marrying someone who, absent those bonds, you would have recognized as insufficiently well suited to you for a permanent relation.

2. Humans have a tendency to heavily discount future benefits in their decisions. This makes evolutionary sense, since we evolved in a very risky environment. Giving up benefits today in order to get larger benefits ten years from now is a bad bet--unless the benefits are a lot larger--if you are quite likely to starve to death in a famine or get eaten by a predator before the benefits arrive. We deal with the conflict between hardwired inclination and rational calculation by a variety of devices, such as Christmas clubs to precommit us to save and awarding status to wealth as well as to consumption.

For many people, cohabitation is much pleasanter than search. Not only does it result in a lot more sex, it also provides a range of emotional and practical support. If you are cohabiting with someone sufficiently well suited to you to make cohabitation workable but not to justify marriage, abandoning cohabitation in favor of continued search means giving up a current benefit in exchange for a distant and uncertain future benefit. So you may continue to cohabit, which means you are not searching--or at least searching much less. Lack of search means you don't find a better partner, so you eventually marry the one you have.

This is, of course, a drastically incomplete account of human mating behavior. Most obviously, humans, especially males, have an alternative strategy--promiscuity. A classic article by Brinig, "Rings or Promises," argued that the custom of giving engagement rings developed as a female defense against that strategy--a performance bond on the promise to marry in a world where intercourse conditioned on that promise was common, but loss of virginity sharply reduced marital opportunities--when courts stopped permitting damage suits for breach of promise. For a more expert account than mine of the relation between evolution and human sexual behavior, I recommend the work of David Buss.

But I think mine is a sufficiently accurate account to explain why cohabitation may sometimes be a mistake.

Friday, December 16, 2005

In Defense of Narnia

I was recently listening, via satellite radio, to a discussion of the new Narnia movies. One of the discussants was an atheist who had enjoyed the books as a child but felt the author was cheating by smuggling Christianity into his story without providing due warning to the reader.

I too am an atheist. I too enjoyed the Narnia books as a child. I too did not spot the close analogy to Christianity when I first read The Lion, The Witch and the Wardrobe. Unlike the discussant, I regard that as a feature, not a bug.

One of the things good writers do is to present ideas in an unfamiliar context, permitting their readers to experience them without the usual intellectual baggage. I already know why I believe that Christianity is wrong. What I want to understand is why lots of people, including lots of intelligent and reasonable people, believe it is right. An author like Lewis--better yet Tolkien--helps me do that, by presenting the religious worldview not as a claim I have already rejected about my world but as a picture of a coherent and believable fictional world.

Which brings me to a question for my readers. Are there books that do the same thing, successfully, for other world views? Is there somewhere a Nazi equivalent? Communist? Buddhist? Muslim? In each case, what I am looking for is fiction that presents an attractive picture of the worldview in a setting sufficiently far from the one we usually associate with it so that the reader can experience it as something good before he recognizes it as something he already knows is bad--or at least wrong.

Tuesday, December 13, 2005

Howard Dean to the White Courtesy Phone

The movement that formed around William Buckley some fifty years ago was a libertarian/traditionalist coalition. It included classical liberals, traditionalist conservatives, and many who accepted elements of both positions. The libertarians got support for free market economic policy, the traditionalists got support for anti-communist foreign policy, and the two factions agreed to disagree on domestic social policy and civil liberties. The overall package was closer to the policies of the Republican party than those of the Democratic party, so conservative political activity was mainly in and through the Republican party.

Libertarians still tend to identify with the Republican party. Save for historical reasons, it is hard to see why. The current administration, despite its free market rhetoric, has been no better--arguably worse--than its predecessor on economic issues. Its policy on public schooling, the largest governent run industry in the U.S., has been a push towards more central control, not less. Its support for free trade has been at best intermittant. Reductions in taxes have been matched by increases in government spending, increasing, not shrinking, the real size and cost of government. It has been strikingly bad on civil liberties. Its Supreme Court nominees have not been notably sympathetic to libertarian views of the law. Libertarians disagree among themselves on foreign policy, but many support a generally non-interventionist approach and so find themselves unhappy with the Iraq war.

The Democrats have problems too. While things have been looking up for them recently, their ideological coalition has been losing strength for decades, leaving them in danger of long term minority status.

The obvious solution to both sets of problems is for the Democrats to try to pull the libertarian faction out of the Republican party. How large that faction is is hard to judge, but it is clearly a lot larger than the vote of the Libertarian Party would suggest. The current administration's use of pro-market rhetoric suggests that it, at least, believes that a significant fraction of its base cares about such things. The conversion of a mere ten percent of current Republicans into Democrats would strikingly alter the current political balance.

How can the Democrats appeal to libertarian Republicans without alienating their own base? Support for school vouchers would meet the former requirement--but in a party where public school teachers make up one of the most powerful interest groups, it is unfortunately not a viable option.

I think I have an answer. In 2004, Montana went for Bush by a sizable margin. It also voted in medical marijuana, by an even larger margin. Legalizing medical marijuana is a policy popular with libertarians, acceptable to Democrats, and opposed by the current administration.

At the very least, prominent Democrats should come out in favor of the federal government respecting state medical marijuana laws, as it has so far refused to do. Better yet, let them propose a federal medical marijuana law. That will send a signal to a considerable number of voters that, at least on this issue, one of the parties is finally on their side. It would be a beginning.

Friday, December 09, 2005

Gay Marriage: Both Sides are Wrong

[I wrote this essay back when gay marriage was a hot issue; my new blog seems a good place to publish it]

Recent acts by the Supreme Court of Massachusetts and the Mayor of San Francisco have shifted the front line of the controversy over same-sex couples. It used to be civil union versus nothing; it is now marriage versus civil union. This raises an obvious question--why does the distinction matter?

Some commentators assume that the important difference is in the legal rights that marriage would, and civil union would not, give a partner under federal law. Finding that an inadequate explanation for the passions on both sides, I put the question to a gay colleague. His answer was immediate and unambiguous--what mattered was the symbolism. As long as people like him were not permitted to call their unions marriage, the government was implicitly condemning their relationships as at least inferior, arguably wicked.

I put the same question to an intelligent, educated elderly man of my acquaintance, married fifty years and proud of it. He agreed that the essential question was symbolic. He thought it was clear that gay couples should have the same legal rights as heterosexual couples. But he also thought it clear that their relationships were not marriages.

I agree with both of them--the essential issue is symbolic. I disagree with both about the conclusion. A law that forbids same sex marriage imposes on everyone the view of one side of the controversy; a law that permits it imposes on everyone the view of the other side. My colleague has the right to live with his partner on the same legal terms that I live with my wife, but he does not have the right to insist that other people regard their relationship as marriage. Making laws about symbolism is not the business of the U.S. government.

The only way out of this dilemma is the neutral option: Get the government out of the business of defining what is or is not marriage. Revise laws where necessary to define legally relevant relationships in gender neutral terms. If a state wants to give special rights to one person in regard to another based on their relationship--the right, say, to make medical decisions in an emergency --let it define the relationship by how long they have lived together, whether they share property, the existence of a public commitment, or whatever other criteria are relevant. Churches, and anyone else, are free to handle marriage as they choose. The legal consequences are gone. The social consequences are up to all the other people who do or do not choose to regard a couple as married.

My First Post

I finally got around to starting a blog today for two unrelated reasons. The first was coming across a speech by Michael Crichton deploring the victory of politics over science in the form of "consensus science." One of his examples ... "According to Sagan and his coworkers, even a limited 5,000 megaton nuclear exchange would cause a global temperature drop of more than 35 degrees Centigrade, and this change would last for three months. The greatest volcanic eruptions that we know of changed world temperatures somewhere between .5 and 2 degrees Centigrade. Ice ages changed global temperatures by 10 degrees. Here we have an estimated change three times greater than any ice age. One might expect it to be the subject of some dispute. But Sagan and his coworkers were prepared, for nuclear winter was from the outset the subject of a well-orchestrated media campaign. The first announcement of nuclear winter appeared in an article by Sagan in the Sunday supplement, Parade. The very next day, a highly-publicized, high-profile conference on the long-term consequences of nuclear war was held in Washington, chaired by Carl Sagan and Paul Ehrlich, the most famous and media-savvy scientists of their generation. Sagan appeared on the Johnny Carson show 40 times. Ehrlich was on 25 times. Following the conference, there were press conferences, meetings with congressmen, and so on. The formal papers in Science came months later. This is not the way science is done, it is the way products are sold." I formed my own opinion on that particular issue many years ago, after reading a scientific article by the authors of one of the articles that fed into the nuclear winter calculations. It conceded that their earlier article contained, as critics had pointed out, a serious error--serious enough so that correcting it reduced the predicted duration of global winter from years to weeks. But they explained that they had now discovered another error in the opposite direction--and correcting it brought the duration back to years. My guess is that they were telling the truth about their analysis. They may even have been correct in their conclusion. But the degree of uncertainty implied by that article was strikingly inconsistent with the confidence with which the nuclear winter conclusion was being trumpeted--largely by people who wanted other people to believe it because they thought that belief would reduce the risk of nuclear war. [All of this was long ago and I am working from memory, so if you want to check my report of the article I am afraid you will have to locate it for yourself.] My second reason to start a blog was a recent experience of the virtues of Chicago style workshops. At most universities, if you are invited to give a paper, you get something like an hour and a half, most of which is spent reading your paper aloud--on the bizarre theory that the professors and graduate students who make up your audience are unable to read it for themselves. Any remaining time can be spent answering questions from people most of whom have just heard your ideas for the first time. Many years ago, someone at the University of Chicago came up with a better model. At a Chicago style workshop, everyone is expected to read the paper in advance. The author gets fifteen minutes to half an hour--the time increases the farther you are from Chicago--to say whatever he wants about his paper. After that it is open season, with members of the audience pointing out errors, raising questions, suggesting ways in which the paper might be expanded or improved. Great fun for all, and the nearest thing I have observed to real time thinking by a group brain. Recently I observed a striking demonstration of the superiority of the Chicago workshop. I was attending one--not at Chicago. Reading the paper, I noticed a mistake in the brief theoretical section that was supposed to motivate the conjecture tested in the statistical analysis that was the core of the paper. The authors had left a term out of an equation--had assumed, in effect, that when A sues B and wins, B pays damages but A does not receive them. Correcting that mistake, and changing nothing else, reversed the conclusion--implied that the conjecture they were testing could not be true. To restore the conclusion it was necessary to make additional changes, dropping one or another of the simplifying assumptions that had gone into the model. The mistake was sufficiently obvious so that any competent graduate student in the field who actually worked his way through the paper should have spotted it. Before the talk started, I mentioned the existence of the mistake to one of the authors. Shortly thereafter, another professor came in--and also described the mistake to him. A few minutes after the talk started a third member of the audience, a very distinguished senior member of our profession, raised his hand and pointed out that the model was clearly wrong. What struck me was not the existence of a careless error in an unpublished draft of a scholarly article--we all make mistakes. What struck me was that this was not the first university the paper had been presented at. Presumably, none of the others followed the Chicago model. If your first contact with a paper is an oral presentation, you are unlikely to check the details of the equations. Apparently nobody at those talks had. [To be fair, I should add that the author told me that the error had been mentioned to him, although not explained, on one earlier occasion--but not by someone whose first exposure to the work was at a university talk.]