Comments on Sunstein and Vermeule's Death Penalty Paper

As many of you know, in the last month, the blawgosphere has been abuzz over U. of Chicago Law’s Cass Sunstein and Adrian Vermeule’s draft paper: Is Capital Punishment Morally Required? The Relevance of Life-Life Tradeoffs.  E.g., Doug Berman’s SLP, Volokh, Crescat, and Mirror of Justice, for just a few examples.

Adrian and Eric Posner are similarly kicking up dust in a paper arguing that coercive interrogation should be permitted too: specifically they claim that if "coercive interrogation is ever justified, and the benefits outweigh the risks of error and unintended consequences, it should be legal, albeit strictly regulated." 

Larry Solum offers some initial and important critical reactions on that paper here. I hope to read it and offer some thoughts soon.

But turning back to the death penalty paper, I thought I’d weigh in on the controversy, since my forthcoming piece (it's coming out this summer; in fact I just got galleys to examine) anticipated in some respects the key parts of Cass and Adrian’s normative argument, which contends that if the deterrence is robust, there is a moral obligation to have capital punishment. I note, as a matter of disclosure, that I sent these comments along to Cass and Adrian a few weeks ago.  (I’ll refer to the piece as S-V for short.)

To recap, S-V observe that some recent econometric studies of the death penalty reveal a possible deterrent effect wherein eighteen innocent lives are saved for every person executed.  They contend that if these figures are reliable, then the use of capital punishment is not only morally permissible, but morally required.

As S-V are ready to acknowledge, their normative argument is separate from the descriptive premise to it. This seems wise, because according to some sources, the work from the econometrics camp is unreliable. See Richard Berk, New Claims about Executions and General Deterrence: D´ej`a Vu All Over Again?, J. Emp. L. Stud. (forthcoming) (March 11, 2005 draft available here; Ted Goertzel, Capital punishment and homicide: sociological realities and econometric illusions, Skeptical Inquirer (July-August, 2004), available here.

A.               

Put that squabble aside, as one should, their point seems to be that if we stipulate that it's a life-life tradeoff, then we are required to execute people.  And this seems like the natural extension of a Bentham to Kaplow-Shavell argument. Fine (with all the caveats associated with that).

The point I make in my paper is that if we are to take that life-life tradeoff seriously, and I do, because I agree with them that moral theorizing about state action has to occur with an ex ante (behind the veil) type of analysis, and with disregard for the act/omission distinction, then you really need to bite the bullet, and say, look, whether the person to be executed is guilty or not is immaterial.  Every situation could be a Jim and the Indians situation, per Bernard Williams.

Of course, there may be reasons (as the Rawls argument from his famous Rules piece shows) why it practically wouldn't devolve into this, and Guyora Binder's piece fairly defends this "institutional" perspective of utilitarian notions of punishment, too.  But at least in theory, the relevance of life-life tradeoffs is overwhelming because we’re committed to executing innocent people if it is likely to save 18 innocent lives every time that opportunity presents itself. That is not something we should blanch at, as a matter of political morality understood ex ante. 

Here’s the upshot though: once we're in the business of executing innocent people to save lives, we can no longer call that punishment, or a death penalty.  For it is then long departed from any requirement that punishment be to communicate blameworthiness to the offender.  Instead, the government program of executions has to be justified in the same way that vaccines or car bag requirements do.  (And this is where Cass' prior work on risk-risk tradeoffs seems very relevant.)

B.              I would note further that S-V’s attempt to remain agnostic on the retributive front is fine, but retributivism is not about saving innocent lives, writ large, even if some deontologists would fasten on to that principle as a trump card. It's about providing an explanation and justification for why we may/ought to punish the guilty and why we don't punish the innocent.

To my mind, the fact that retributivism doesn't valorize saving lives above all else means that, in extremis, it is a principle that can be trumped when there are compelling reasons to think exigent circumstances should justify departures from it. 

C.              At some point, Cass and Adrian refer to "thou shalt not kill" language, but my understanding is that the biblical injunction translated from Hebrew correctly is “thou shalt not murder.” So the state could kill without it being murder obviously.  The separate question is whether that killing would be justified.

D.              One final thing: I'm not trained in quantitative social sciences, so I have a hard time, probably like some other folks, assessing the nitty-gritty of the deterrence materials. Still, for reasons that various folks have argued elsewhere, I do think that, conceptually, predicting deterrence is virtually impossible to measure. (There's some discussion of these difficulties in my paper if you search for Sigler.) That said, the evidence relied on for S-V’s descriptive premise, if true, should give any person pause. 

I'm assuming that the Berk paper and others explain why the issue is less likely to be as pristine (and attention-grabbing) as might be suggested by the S-V paper.  As someone less certain about the good deterrence results, I'm a bit worried about the traction the S-V argument will get more broadly because I have no doubt this paper will be influential and widely-cited.  Of course, if my uncertainties are misplaced, then the traction this paper of theirs gets will be all to the good.