18 November 2007

The Company We Keep: Capital Punishment (2)

Just the other day I posted on the death penalty in the U.S.; I've posted on the topic several times before too. Today a very interesting story appears in The New York Times on recent debates in the legal academy regarding the deterent effects of the death penalty. Some 'law & economics' types have conducted studies that show that the death penalty has (modest to significant) deterent effects and so saves lives. The thrust of the argument is that if saving life is important (as critics of the death penalty seem to presume) then the death penalty may be warranted if, on balance, it saves lives.

Of course, there are critics of the work too. I find the question of causal mechanisms the most powerful line of questioning the critics present. Most of the studies seem to treat murder as a cold and calculated act in which the perpetrator considers the costs and benefits of killing. That may be true of some murders; I doubt it is true of most. As the The Times suggests:

"But not everyone agrees that potential murderers know enough
or can think clearly enough to make rational calculations. And the
chances of being caught, convicted, sentenced to death and
executed are in any event quite remote. Only about one in 300
homicides results in an execution."

I have not read the studies cited in The Times article. But here are some of my off-the-top-of-the-head questions and qulams. Some may be addressed in the studies. In any case, before we mount a campaign for using the death penalty we ought to consider some of these issues:

(1) Is the deterrent effect of the death penalty (as translated into saved lives) stronger than that for other severe penalties (e.g. life without parole)? Would the resources used in deterring murder via the death penalty have even greater impact if used for crime prevention measures instead of punishment?

(2) What is the point of punishment? Do we necessarily punish for deterrence? What about retribution? What about incapacitation? What about rehabilitation?

(3) Deterence is a consequentialist notion - we punish in order to have a deterent effect. But what about non-consequentialist objections to the death penalty - say rights-based objections that might invoke, say, the constitutional ban on cruel and unusual punishment?

(4) If we are going to talk about consequences (ie., dererrence) should we talk about consequences more broadly? Does the death penalty have a coarsening effect on U.S. society and culture? Any consequentialist argument has got to justify the scope and extent of the consequences it takes into account. Thus the studies reported by The Times are at best an opening salvo.

(5) What about objections to the various flawed and lopsided ways the death penalty is administered in the U.S.? I raised these in my previous post and the deterrence argument does nothing to address them. We might reject the death penalty due to insuperable procedural objections. (We could here also ask about the consequences for society of relying on a plainly flawed and lopsided regime of punishment.)

(6) Let's say that we are going to proceeed on narrowly consequentialist grounds. If the death penalty has deterrent effects shouldn't we try to heighten those effects by not simply making executions public (instead of holding them behind prison walls), but indeed by incorporating them into secondary school or college curricula (we can maybe spare the elementary and middle school pupils)? Here, as I have suggested in the past, proponents of the death penalty might read Allen Steele's terririfc short story "Doblin's Lecture" (1996) for a template on how to proceed.

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