Sunstein & Vermeule on the Death Penalty and Deterrence

Prominent legal scholars Cass Sunstein and Adrian Vermeule have posted a new paper, "Is Capital Punishment Morally Required?  The Relevance of Life-Life Trade-offs."  Here is the abstract:

Recent evidence suggests that capital punishment may have a significant deterrent effect, preventing as many as eighteen or more murders for each execution. This evidence greatly unsettles moral objections to the death penalty, because it suggests that a refusal to impose that penalty condemns numerous innocent people to death. Capital punishment thus presents a life-life tradeoff, and a serious commitment to the sanctity of human life may well compel, rather than forbid, that form of punishment. Moral objections to the death penalty frequently depend on a distinction between acts and omissions, but that distinction is misleading in this context, because government is a special kind of moral agent. The familiar problems with capital punishment – potential error, irreversibility, arbitrariness, and racial skew – do not argue in favor of abolition, because the world of homicide suffers from those same problems in even more acute form. The widespread failure to appreciate the life-life tradeoffs involved in capital punishment may depend on cognitive processes that fail to treat “statistical lives” with the seriousness that they deserve.

Professor Eugene Volokh provides more detailed excerpts, and some comments, at the Volokh Conspiracy blog.

Two quick thoughts:  First, it is not obvious to me that the new deterrence evidence "greatly unsettles moral objections to the death penalty, because it suggests that a refusal to impose that penalty condemns numerous innocent people to death"; nor am I sure that "[c]apital punishment thus presents a life-life tradeoff, and a serious commitment to the sanctity of human life may well compel, rather than forbid, that form of punishment."  If our objections to the death penalty are non-consequentialist, and focus on the immorality of its imposition, then it is not clear that our objections are vulnerable to evidence or awareness that by complying with a non-consequentialist moral rule against intentional killing we are making more likely immoral killings by others.  To fail to prevent another's intentional killing is not -- is it? -- the same thing as to intentionally kill another.

Second, the evidence discussed by Sunstein and Vermeule should, in my judgment, be taken very seriously by the American Bishops and their staff as they begin the campaign against capital punishment about which I've read recently.  In my view, the Bishops' arguments should not rely too heavily on abolitionists' long-standing -- and questionable -- claims that the death penalty does not deter crime.  They should also be careful not to endorse uncritically the common, but exaggerated, claim that every reversal of a death sentence by a court amounts to the exoneration of an innocent person.  There is not much to gain -- and maybe much to lose -- by merely baptizing contingent and questionable empirical claims.

Rick