Given the recent posts about the death penalty and deterrence, MOJ readers might want to check out this essay by Stuart Taylor. A bit:
[I] suspect that the abolitionist justices may have been right in their perception that the death penalty is in tension with the "evolving standards of decency that mark the progress of a maturing society." . . .
They were wrong, however, to take this perception as a mandate to abolish the death penalty, for at least three reasons.
First, the recent history sketched previously shows that the trend toward less enthusiasm for executions is not linear, and that well-intentioned judicial efforts to speed up the evolution process can backfire.
Second, judicial abolition of the death penalty would usurp powers assigned by the Constitution to the legislative and executive branches. In this sense, Furman had less to do with the progress of a maturing society than with what Justice William Brennan, when breaking in new law clerks, introduced semi-facetiously as "the rule of five."
"You got five votes," he would explain with mock professorial gravity, "you can do anything you want." So you can, for a while. But in the long run, societies mature better when they do it the old-fashioned way, without the help of judicial fiats.
Third, while the justices know a lot about the social costs of the death penalty, they know very little about whether and to what extent these costs may be offset by the very considerable benefit of saving innocent lives. . . .
[A]t this point most of us can only speculate about which side has the better of the inherently conjectural arguments about deterrence. The same is true of the justices. And speculation is not a firm foundation on which to build constitutional law.
I am definitely with Taylor on the first two points. As for the third -- As I have indicated before, it seems to me that the question whether the death penalty deters matters, really, only once we've identified a class of cases in which it is, or could be, morally permissible. It does not seem to me that deterrence helps us to identify this class of cases as an initial matter. (Whether the death penalty's deterrent effect, or lack thereof, of relevant to the constitutional question whether its use violates the Eighth Amendment is, I assume, a different matter.)
UPDATE: Here's a death-penalty-and-deterrence post by Jack Balkin. I have some thoughts in the comments box.
Sunday, November 18, 2007
In the current issue of Touchstone, Robby George has a short, clear, and -- I think -- dead-on essay called "Morality of Majority." (Here, by the way, is a link to Touchstone's blog, "Mere Comments," which is always engaging.) A bit:
. . . Catholicism . . . preaches democratic ideals and promotes democratic institutions in the political sphere. . . . This teaching is put forth not as a mere prudential matter, much less as some sort of modus vivendi with modernity, but as a matter of justice in the dealings of human beings with one another. At is core is the idea that of all systems of political governance, democracy best comports with the foundational anthropological and moral truth that every human being, as a creature fashioned in the very image and likeness of God, possesses a profound, inherent, and equal dignity. . . .
Democracy, however, is fundamentally a means rather than an end in itself. . . . [Similarly,] the common good of political society is fundamentally an instrumental good rather than an intrinsic good.
In this respect, the common good of political society is unlike the common life of the family and the koinonia of the church. The point of political society is provided by the ends or purposes it serves . . . .
By contrast, the family and the church, though they may also be means to many valuable ends, are not mere means. . . .
Thanks to Michael P. for the link to Adam Liptak's piece on the death penalty and deterrence. I don't think he will disagree with my view that the fact that X "saves lives" (as, I am willing to assume, just for the sake of argument, the application of the death penalty does, in some sense) does not tell us whether or not X is morally permissible (even if it is a factor that might, with respect to some acts and contexts, weigh in X's favor). This is one reason why, in my view, the (so-far-unsubstantiated) claims that, say, embryo-destroying research will, somehow, improve the health of ill and disabled people do not provide particularly powerful support for the assertion that it is morally permissible to engage in such research.
Saturday, November 17, 2007
This is from John Breen:
Thanks to Rick Garnett for posting the SSRN links to my two articles, John Paul II, the Structures of Sin and the Limits of Law (forthcoming in the Saint Louis University Law Journal) and Modesty and Moralism: Justice, Prudence and Abortion — A Reply to Skeel & Stuntz (forthcoming in the Harvard Journal of Law & Public Policy).
Thanks also to Bill Stuntz for joining the conversation here at MOJ.
[With respect to "the consistent lesson of American history, including the history of abortion and abortion law itself"], Bill confines his research regarding the incidence of abortion in the era of criminalization to a single source, namely, Gerald Rosenberg ’s deeply flawed discussion of the subject in his book A Hollow Hope (1991). . . . Bill and David ignore the rich literature that shows that the practice of abortion increased exponentially following the state reform efforts of the late 1960s and early 1970s and the Supreme Court’s decision in Roe v. Wade.
As Rick notes in his post, this history is set forth in great detail in Joseph Dellapenna's masterful work, Dispelling the Myths of Abortion History (2006). Although Bill and David ’s article was published prior to Dellapenna’s book, the underlying sources upon which Dellapenna relies were freely available. I review these sources in critiquing Rosenberg’s troubled work and by extension, the Skeel-Stuntz modesty thesis as it applies to abortion.
Indeed, Bill and David’s claim that prudence demands that abortion should be left to the influence of cultural norms rather than subject to legal regulation appears to make sense only because they ignore the way in which the law significantly reduced the incidence of abortion in the era prior to Roe. The law was indeed an effective teacher – a role that Bill and David consistently understate in their essay.
Bill further states that if “there is ever a genuinely pro-life political majority in the United States . . . [it] should try to use government policies to promote . . . means of encouraging and helping young women in distress, not hammering those who make bad choices.” I agree that the state should help women with unwanted pregnancies in a variety of ways, including the provision of greater social assistance. However, in the second article mentioned above, I show – based on data from other well-developed countries that allocate more resources to such women – that such efforts will likely have only a marginal effect on the incidence of abortion.
Bill does not – either in his articles or in his post – provide any reason for believing that pro-life legal efforts need to wait, in sequential fashion, for a moral renovation of the culture to be completed. Instead, the relationship between law and culture is dynamic, mutually informing and reinforcing. Thus, in the papers mentioned above, I argue that the proper strategy for reducing the incidence of abortion requires a multi-faceted approach in which culture and law work in tandem. Indeed, contrary to those who oppose the coercive use of law and those who advocate a strategy of “culture first,” I argue that both culture and law – including the criminal law – have a significant role to play in reducing the frequency of abortion.
Here I draw upon the recent historical example of the reduction in drunk-driving fatalities that began in the 1980s. This reduction (from 26,000 in 1982 to 16,000 in 2005) was the result of new laws, stiffer penalties, and more aggressive enforcement, as well as the diffusion of a significant cultural message at the grass-roots level from organizations such a MADD and the like. The data shows that when combined with this cultural message, the law had a significant effect beyond the particular instances in which it was enforced. That is to say, it taught the cultural values that it embodied.
Thursday, November 15, 2007
Bill Stuntz, in his thoughts responding to John Breen's recent papers, writes:
If a large number of young women want to end their pregnancies even if that means killing the soon-to-be children in their wombs, I do not believe any modern legal system can or will stop them from doing so without causing even greater loss of life in the process. That is the consistent lesson of American history, including the history of abortion and abortion law itself.
With respect, I disagree. This is not, in my view, the lesson of "the history of abortion and abortion law itself." I do not believe that the facts support the claim that closer regulation (even prohibition) on elective abortions resulted, or would result, in "even greater loss of life" than a permissive, abortion-on-demand regime. Joseph Dellapenna's book, "Dispelling the Myths of Abortion History", refuted quite thoroughly the purported premises of this claim.
That said, certainly, I agree with Prof. Stuntz (and St. Thomas!) that we need not -- and, in fact, should not -- criminalize every vice, or even every immorality. But the current abortion-license involves, among other things, the singling out of a group of human persons for exclusion from the law's protection against private lethal violence. The fact that the inclusion of these persons in the community of those protected by law against such violence would have some costs does not (as opposed to, say, the case of marijuana-legalization), in my view, warrant declining to include them.
Thanks to Tom for this reply. He asks -- responding to my call for voucher-ization of education funding -- "Why not seek more progressivity in the benefit structure as well as pluralism in options, as a matter of principle (even though this approach is probably even less politically viable than the others we've been discussing)?"
If "more progressivity in the benefit structure" helps to get us to the goal, I'm all for it. (I suspect, though, that the political realities would cut strongly against such progressivity; we'd want to worry about middle-class buy-in). That said, I guess (and I have to admit I didn't think about this when I wrote my earlier post) I would want to know about the revenue-generating mechanism at issue. Are we talking local property taxes, state sales taxes, federal income taxes, or something else? If the mechanism already had progressivity built in (i.e., if the wealthier were already paying in more), then the case for progressivity in benefits seems somewhat weaker.
