Sunstein, Cass & Vermeule, Adrian - Is Capital Punishment Morally Required? The Relevance of Life-Life Tradeoffs

06/22/2007

AEI-Brookings Joint Center For Regulatory Studies, March 2005

Authors argue that government legislation is always trafficking in courses of action that encourage and discourage in order, presumably, for social goods to be obtained. If it is the case that the death penalty is a deterrent for murder, then there is a life-life tradeoff in instituting the death penalty. It is a life-life tradeoff because a system of laws without the death penalty spares a few mostly guilty lives for numerous innocent lives, while a system of laws with the death penalty trades mostly guilty lives for numerous innocent ones.

The major thrust for this paper lies in recent studies that conclude that the death penalty does act as a deterrent, one such study claiming that there were, roughly, 18 murders deterred per legal execution. There is a 'threshold' effect that indicates that if not enough executions take place per year and/or are capricious enough, this deterrent effect doesn't work. Furthermore, even more murders are avoided as the time between the trial and the execution is shortened. The authors report this evidence and do not argue with the studies. They are interested in the moral issue if the studies are true, so they simply grant the evidence as true and start from there.

Authors want to avoid the reply that this only applies to a consequentalist and not to a deontologist. They argue that it applies to a consequentalist in a straightforward manner. For the deontologist, there may be a way out, but it is unpalatable. First off, authors frame the issue as a trade between numbers of lives: 1 vs 18. Under this trade, it seems that even the deontologist must hit a 'threshold override'. (pg 13-14) Authors claim that other objections from the deontologist are attributable to the acts/omissions distinction.

The biggest part of the paper involves replying to what they take to be the central principled objection to the death-penalty-as-deterrent argument. This argument goes as follows:
Central Objection: The death penalty is an affirmative action on the part of the state to kill another human being, while the deaths its absence allows are affirmative actions of citizens, not endorsed by the state at all. (This can be broken down into two separate objections: intentional and causal) (pg 15)
Intentional: under death penalty, the state intends to kill, while without death penalty, the state doesn't intend to kill, the citizenry does.
Causal: under death penalty, the state causes a death, while without death penalty, the causal chain is much longer, and ultimately the cause isn't the state, it is its citizens.
Authors claim these objections, and a few like them, operate on a hidden principle of the distinction between actions and omissions to action. Authors argue this distinction does not apply to governments. Governments are always choosing what package of legal policies will optimize the goals of the state & citizenry. (pg 16-7) In this case, there is the imagined two packages that are entirely equal except one includes capital punishment and the other doesn't. The evidence suggests that capital punishment package will result in far fewer murders-- isn't that the one to go with?

Other objections about capital punishment are then addressed. Mainly authors reject them as failing to take seriously the idea that a regime of capital punishment, no matter how flawed, will still save numerous entirely innocent lives. Objections: the innocent convict, the randomly assigned execution, the racially motivated execution. These are three additional objections to capital punishment. Authors reply that these scenarios also apply to the innocent lives that are being killed because the would-be killers aren't being deterred (like they would be if capital punishment was used). (pg 20-24)

Arguments against capital punishment as a tool for deterrence now roll in: there are other ways to deter murder, do those instead. Authors say: fine, fine; but don't forget that these other ways actually have to be committed to, practical, feasible, and proven. So far, it seems capital punishment is a good policy, at least until other policies arrive. There is no reason to be against it, since the evidence (ex hypothesi) is supportive that it works. Authors peg this argument, like most of their previous ones, to the evidence. If the evidence turns out faulty or not based on the regime of capital punishment, the moral conclusion would change. But as the evidence suggests that a life-life trafeoff is 1 to 18, capital punishment is morally obligatory.

Lastly, because this is a life-life tradeoff, they can't be accused of a slippery slope (pg 27) or extending their arguments to other domains (pg 40). Executing someone for rape may deter, but it isn't a life-life tradeoff. Therefore the moral calculus is different, and it may not be morally requisite.

Authors suggest that failure to take the life-life tradeoff seriously might be a cognitive error of not taking 'statistical lives' as real ones. (pg 32-35)