So what if the death penalty deters?

Opponents of the death penalty have many reasons for thier opposition

that innocent people may be executed,

that the death penalty is 'uncivilized',- that the state should not take lives.

But what these arguments come down to is.

DOES THE THREAT of the death penalty deter people from murderous behavior more than the threat of imprisoinment for life? We do not yet know with anything even approaching certainty whether the death penalty does or does not deter. The question is clearly empirical; and it is likely that sophisticated statistical techniques will eventually permit us an answer.

Professor Isaac Ehrlich and his colleagues, utilizing his statistical techniques, argue that there can be little doubt about the ability of the death penalty to deter. Ehrlich concludes that each additional execution prevents about seven or eight people from committing murder. All statistical arguments on the death penalty are, however, excruciatingly complex. Some critics, for example, have argued that increased likelihood of execution leads juries to convict fewer people, thereby offsetting the deterrent effect. If anything, the empirical evidence is that the death penalty does deter. But this is inevitably open to dispute. As a result, firm conclusions that the death penalty either does or does not deter are unwarranted and usually determined by one's psychological and moral leanings.

In academic and media circles, psychological and moral resistance to the idea of the death penalty usually leads to the assertion that it does not deter. These people's conclusion may or may not be correct, but it does not follow from the arguments they deploy:

1. Since many murders result from emotional impulse (e.g., the angry husband who kills his wife), the death penalty could have, at best only the slightest deterrent effect, If the death penalty deters, it is likely that it does so through society's saying that certain acts are so unacceptable that society will kill someone who commits them. The individual internalizes the association of the act and the penalty throughout his life, constantly increasing his resistance to committing the act. Note that there is no implication here that the potential murderer consciously weighs the alternatives and decides that the crime is worth life in prison, but not death. No serious theory of deterrence claims that such rational calculation of punishment (as opposed to no rational calculation, or calculation only of the probability of getting caught) plays a role.

There is no a priori reason for assuming that this process is less relevant to emotional acts than rational acts; most husbands, when angry, slam doors, shout, or sulk. Neither the death penalty nor anything else deterred the husband who did murder his wife, so the question is not what deterred the person who did murder (nothing did), but what deterred the person who didn't. If the death penalty deters, it is, in all likelihood, primarily because it instills a psychological resistance to the act, not because it offers a rational argument against committing the act at the time that the decision is being made. In short, it is only legislators who calculate (or at least should calculate) the deterrent effect of the death penalty. Potential murderers simply act; the deterrent effect of the death penalty, if there is one, acts upon them. If it acts with sufficient strength, it prevents their becoming murderers. The legislator is the physicist studying the forces that move particles; the potential murderers are the moving particles.

2. There is no evidence that the death penalty deters. This is simply untrue. Ehrlich's complex statistical techniques establish a real case that the death penalty deters. But here let us assume, for argument's sake, that there was no such evidence. The more important point is that there is a crucial difference between there being no evidence that two things are correlated and there being evidence that two things are not correlated. The latter means that we have good evidence that the two things are not related; the former means simply that we have no evidence on either side of the case.

Now, it is quite true that we must have some sort of evidence in order to even entertain the idea that two things are related. Our reason for not believing that tall Italian men are smarter than short Italian men is not simply that we have no direct evidence, but also because we have no informal evidence suggesting that this is true-and so we do not bother to even investigate the possibility. It is the lack of relevant informal evidence that permits us to ignore the difference between not having evidence that the hypothesis is true and having evidence that the hypothesis is not true.

But, in the case of penalties, we have an enormous amount of both informal and formal evidence-from everyday experience of socializing children and limiting adult behavior and ftom such "experiments" as increasing the fees for parking violations-that, as a general rule, the greater a punishment, the fewer people will behave in the punished way. Thus, it is perfectly reasonable to expect that the death penalty would have a more dissuasive effect than would life imprisonment.

FINALLY, NEARLY EVERY popular article and a good many academic articles invoke the experience of the British with public hanging of pickpockets as proof that the death penalty does not deter. The argument sees the fact that pickpocketing continued long after the introduction of (public) hanging as demonstrating that the death penalty has no deterrent effect. It demonstrates no such thing, of course; at best, it demonstrates that not every pickpockrt was dissuaded, a fact no one would doubt. Even if it could be shown that all practicing pickpockets continued to pick pockets at the same rate, this would still not address the more important question of whether some people who had not yet become pickpockets were dissuaded from doing so by the death penalty. I have no idea whether they were, but neither do those who deny the death penalty's effect.

3. The death penalty will inevitably be imposed on some innocent people. This is, of course, true. But it is also true that, if the death penalty deters, the number of innocent people whose lives are saved will, in all likelihood, dwarf the number of people executed-and a fortiori, the number wrongfully executed. Moreover, even the opponent of the death penalty who emphasizes wrongful executions is willing to sacrifice thousands of lives each year for the social advantages of motor vehicles. Realizing this, the opponent differentiates between the death penalty and the use of motor vehicles on the grounds that:

4. In the case of the death penalty, it is the state that takes a life. This seems to be an argument but is, in fact, merely a restatement of the basic ad-hoc moral objection to the death penalty. Therefore, it is fair to point out that those basing their opposition to the death penalty on the fact that it is the state that takes a life are, if the death penalty deters, maintaining their belief bysacrificing the (innocent) people who will be murdered because the death penalty is not invoked.

5. The death penalty exchanges "real lives" (those of the executed) for "statistical lives" (those of the people who will not if the death penalty deters and is invoked, be murdered). This argument is essentially a sentimental shrinking from reality. But even if one grants this dubious distinction, this defense is available only to the pure pacifist. The most justified military action makes exactly this exchange when it sacrifices many of society's young men in order to avoid a greater loss of life.

6. If we do not know whether the death penalty deters, we should not use it. As we have seen, if the death penalty deters, it deters the murder of people who are, in addition to being innocent, in all likelihood more numerous than the murderers who are executed. Thus, if society does invoke the death penalty on the assumption that the death penalty deters and is incorrect in this assumption, it unnecessarily accepts the deaths of a relatively small number of (nearly always guilty) individuals. On the other hand, if society refuses to invoke the death penalty on the assumption that the death penalty does not deter and is incorrect in this assumption, then it unnecessarily accepts the deaths of a relatively large number of innocent people. Consideration of this casts doubt on the intuitively plausible claim that, for as long as it is not known whether the death penalty deters, it should not be used. Supporters of the death penalty might turn this argument on its head, viz.: if we do not know for certain that the death penalty does not deter, then we are obliged to use it to save an unknown number of innocent lives.

7. The death penalty is "uncivilized." If the death penalty deters, then, by definition, it results in a society in which there are fewer murders than there would be if the death penalty were not invoked. The opponent of the death penalty can, of course, render this fact irrelevant and immunize his argument by detaching it from deterrence altogether; he can assert that the death penalty is wrong even if it deters. He can, in other words, see the death penalty as analogous to torture for theft: the threat of torture would no doubt deter some people from theft, but would still be unjustified. This is what is implied in the rejection of the death penalty on the grounds that it is "uncivilized" or that it "increases the climate of violence." Ultimately, these defenses of opposition are as invulnerable to refutation as they are incapable of persuading anyone who does not already accept their assumption that the deterrence of murders would not justify the use of the death penalty.

One might ask, however, what, precisely, are the definitions of "civilization" that see as "more civilized" a society in which more (innocent) people are murdered than would be the case if the society did not refuse to use the death penalty. Indeed, one might ask the opponent of the death penalty just how many innocent people he is willing to sacrifice to avoid executing the guilty.

8. It is those who oppose the death penalty who act out of humane motives. Motivation is irrelevant to the correctness of an empirical claim. However, since nearly every article on the subject accords to the opponent of the death penalty the right to claim a greater humanity (a right the opponent invokes with alacrity), it is worth noting there are alternative views of the opponent's motivation.

One such view is that the opponent's opposition flows not from feelings of humanity, but from the fact that the opponent can picture the murderer being executed, while he cannot picture the statistical group of innocent people who will be murdered if the death penalty deters but is not employed. The picture of the execution is capable, as the murder of the statistically expected victims is not, of eliciting guilt and fear of aggression with which the opponent cannot deal. He rationalizes his avoidance of these with feelings of humanity which bolster self-esteem and avoid awareness of his true motivation.

It is every bit as reasonable to see this as the opponent's motivation as it is to accept that his opposition flows from his self-proclaimed greater humanity. Like opponents of the death penalty, I too hope that the death penalty does not deter. If this proves to be the case, we will avoid the terrible choice that deterrence forces upon us. Unlike the opponents of the death penalty, however, I do not fool myself into thinking that this hope speaks well of one's character. After all, it is a hope that is willing to sacrifice the possibility of saving innocent people in order to avoid personal psychological pain. This doesn't count as altruism where I come from.