Death Penalty Deterrence

Death penalty proponents are fighting back against the recent wave of anti-death penalty sentiment:

"Science does really draw a conclusion. It did. There is no question about it," said Naci Mocan, an economics professor at the University of Colorado at Denver. "The conclusion is there is a deterrent effect."

A 2003 study he co-authored, and a 2006 study that re-examined the data, found that each execution results in five fewer homicides, and commuting a death sentence means five more homicides. "The results are robust, they don't really go away," he said. "I oppose the death penalty. But my results show that the death penalty (deters) — what am I going to do, hide them?"

Statistical studies like his are among a dozen papers since 2001 that capital punishment has deterrent effects. They all explore the same basic theory — if the cost of something (be it the purchase of an apple or the act of killing someone) becomes too high, people will change their behavior (forego apples or shy from murder).

I agree with these conclusions, although my main deterrence argument is more general. Having a death penalty sends a general message to society that crime will not be tolerated, and thus reduces criminal behavior more broadly than just murder.

Dahlia Lithwick Makes an Absurd Argument about the Death Penalty

Dahlia Lithwick argues that popular support for the death penalty has declined in recent years from very widespread support to merely substantial majority support (67%), but because the Supreme Court has not declared it unconstitutional in view of this decline, the Court is at odds with the views of the people. Well, she doesn't say it quite like that. Instead, she hedges a bit, and uses phrases like "there now seems to be a subtle hardening in favor of the death penalty" on the court. But to me the implication is that she thinks they should say it's unconstitutional.

So, first off, what on earth is she thinking saying that the Court is not following the people when 67% of people support it? Granted, support has declined, but it's still very high, probably higher than among the Justicies.

But more importantly, there's a big difference between people having doubts about the death penalty as a policy matter and it being unconstitutional. It can be a horrible policy but still be constitutional (or vice versa). There's not always going to be a connection between the two. The Court's job is to address constitutional issues, not make policy, right? I guess for some people these issues are one and the same, which is something that is depressing to be reminded of.

The Volokh conspirators dissect the issue here and here.

European Attitudes towards the Death Penalty

I was somewhat surprised to see that European opposition to the death penalty was not stronger:

According to the same survey, 60% of Europeans are against capital punishment, while 38% are in favour. Support for abolition is most widespread in the south (80% of the Spanish population and 72% of Italians declare themselves opposed to the death penalty), while the British are divided on the issue (49% against and 48% in favour).

I was under the impression there was almost unanimous opposition, but apparently not. Maybe the UK will even bring it back some day!

I've never understood why opposition to the death penalty is as strong as it is, especially to the mere idea of it. I can understand the criticism of the implementation, which seems unfair in any many ways. But I often hear people say they oppose the "state" killing people under any circumstances. Presumably, though, they do not have a problem with a police officer killing someone who is trying to murder them. Thus, it can't really be an opposition to all state killing. So what's wrong with killing someone who has killed in a way that indicates a likelihood to kill again?

The Death Penalty and Lethal Injection

Opponents of the death penalty are engaged in a multi-faceted attack on the practice. One aspect of their fight is an attempt to have certain methods of carrying out the death penalty declared unconstitutional as "cruel and unusual punishment." In Kentucky, a particular lethal injection method was challenged on the basis that the drug formula used "causes inmates to feel pain and is therefore cruel and unusual punishment." In a unanimous opinion, the Kentucky Supreme Court rejected the challenge. In doing so, it stated:

"It is not the role of this Court to investigate the political, moral, ethical, religious or personal views of those on each side of this issue. ... We are limited in deciding only whether the method defined by the Legislature and signed into law by the Executive, survives constitutional review," ...

The lawyers for the two men convicted say they will ask for a rehearing or will appeal to the U.S. Supreme Court.

I never know quite what to make of this kind of challenge. My assumption is that the claims are not based on a feeling that the particular death penalty method at issue is bad, but another one might be OK. Rather, it's just an attempt to get all methods declared unconstitutional. This seems a bit disingenuous, but I suppose it's a reasonable thing to do if you're on death row or if you think the death penalty should be abolished.

On the specific legal issue, I don't see how lethal injection could be considered either "cruel" or "unusual." It's certainly not cruel in comparison to the alternatives (electrocution, anyone?). And it's not unusual either.

As a result, I'm not convinced this is a productive approach for death penalty opponents. If they were to win, it would seem like they won on a technicality, and could create quite a backlash. I think their best bet is to try to undermine support for the death penalty among the populace more generally.