Against and for Capital Punishment

SUNSTEIN & VERMEULE 58 STAN. L. REV. 703 1/9/2006 10:51:05 AM IS CAPITAL PUNISHMENT MORALLY REQUIRED? ACTS, OMISSIONS, AND LIFELIFE TRADEOFFS Cass R. Sunstein* and Adrian Vermeule** Many people believe that the death penalty should be abolished even if, as recent evidence seems to suggest, it has a significant deterrent effect. But if such an effect can be established, capital punishment requires a life-life tradeoff, and a serious commitment to the sanctity of human life may well compel, rather than forbid, that form of punishment.
The familiar problems with capital punishment— potential error, irreversibility, arbitrariness, and racial skew—do not require abolition because the realm of homicide suffers from those same problems in even more acute form. Moral objections to the death penalty frequently depend on a sharp distinction between acts and omissions, but that distinction is misleading in this context because government is a special kind of moral agent.
The widespread failure to appreciate the life-life tradeoffs potentially involved in capital punishment may depend in part on cognitive processes that fail to treat “statistical lives” with the seriousness that they deserve. The objection to the act/omission distinction, as applied to government, has implications for many questions in civil and criminal law. INTRODUCTION…………………………………………………………………………………… 704 I. EVIDENCE ………………………………………………………………………………………. 10 II. CAPITAL PUNISHMENT: MORAL FOUNDATIONS AND FOUR OBJECTIONS … 716 A. Morality and Death………………………………………………………………….. 717 B. Acts and Omissions ………………………………………………………………….. 719 1. Is the act/omission distinction coherent with respect to government?……………………………………………………………………. 720 * Karl N. Llewellyn Distinguished Service Professor of Jurisprudence, the University of Chicago Law School, Department of Political
Science, and the College. ** Bernard D. Meltzer Professor of Law, the University of Chicago. The authors thank Larry Alexander, Ron Allen, Richard Berk, Steven Calabresi, Jeffrey Fagan, Robert Hahn, Dan Kahan, Andy Koppelman, Richard Lempert, Steven Levitt, James Liebman, Daniel Markel, Frank Michelman, Tom Miles, Eric Posner, Richard Posner, Joanna Shepherd, William Stuntz, James Sullivan, and Eugene Volokh for helpful suggestions, and Blake Roberts for excellent research assistance and valuable comments.
Thanks too to participants in a work-in-progress lunch at the University of Chicago Law School and a constitutional theory workshop at Northwestern University Law School. 703 SUNSTEIN & VERMEULE 58 STAN. L. REV. 703 1/9/2006 10:51:05 AM 704 STANFORD LAW REVIEW [Vol. 58:703 2. Is the act/omission distinction morally relevant to capital punishment? ……………………………………………………………………. 724 C. The Arbitrary and Discriminatory Realm of Homicide………………….. 728 D. Preferable Alternatives and the Principle of Strict Scrutiny…………… 32 E. Slippery Slopes ………………………………………………………………………… 734 F. Deontology and Consequentialism Again…………………………………….. 737 III. COGNITION AND CAPITAL PUNISHMENT …………………………………………… 740 A. Salience ………………………………………………………………………………….. 741 B. Acts, Omissions, and Brains………………………………………………………. 741 C. A Famous Argument that Might Be Taken as a Counterargument ….. 743 IV.
IMPLICATIONS AND FUTURE PROBLEMS …………………………………………… 744 A. Threshold Effects (? ) and Regional Variation ……………………………… 745 B. International Variation …………………………………………………………….. 745 C. Offenders and Offenses …………………………………………………………….. 746 D. Life-Life Tradeoffs and Beyond………………………………………………….. 747 CONCLUSION ……………………………………………………………………………………… 48 INTRODUCTION Many people believe that capital punishment is morally impermissible. In their view, executions are inherently cruel and barbaric. 1 Often they add that capital punishment is not, and cannot be, imposed in a way that adheres to the rule of law. 2 They contend that, as administered, capital punishment ensures the execution of (some) innocent people and also that it reflects arbitrariness, in the form of random or invidious infliction of the ultimate penalty. 3 Defenders of capital punishment can be separated into two different camps.
Some are retributivists. 4 Following Immanuel Kant,5 they claim that for the most heinous forms of wrongdoing, the penalty of death is morally justified or perhaps even required. Other defenders of capital punishment are consequentialists and often also welfarists. 6 They contend that the deterrent 1. See, e. g. , Furman v. Georgia, 408 U. S. 238, 309, 371 (1972) (Marshall, J. , concurring). 2. See Stephen B. Bright, Why the United States Will Join the Rest of the World in Abandoning Capital Punishment, in DEBATING THE DEATH PENALTY: SHOULD AMERICA HAVE CAPITAL PUNISHMENT? 52 (Hugo Adam Bedau & Paul G. Cassell eds. , 2004) [hereinafter DEBATING THE DEATH PENALTY]. 3. See, e. g. , James S. Liebman et al. , A Broken System: Error Rates in Capital Cases, 1973-1995 (Columbia Law Sch. , Pub. Law Research Paper No. 15, 2000) (on file with authors). 4. See, e. g. , Luis P. Pojman, Why the Death Penalty Is Morally Permissible, in DEBATING THE DEATH PENALTY, supra note 2, at 51, 55-58. 5. See IMMANUEL KANT, THE PHILOSOPHY OF LAW: AN EXPOSITION OF THE FUNDAMENTAL PRINCIPLES OF JURISPRUDENCE AS THE SCIENCE OF RIGHT 198 (W.
Hastrie trans. , 1887) (1797). 6. Arguments along these lines can be found in Pojman, supra note 4, at 58-73. SUNSTEIN & VERMEULE 58 STAN. L. REV. 703 1/9/2006 10:51:05 AM December 2005] IS CAPITAL PUNISHMENT MORALLY REQUIRED? 705 effect of capital punishment is significant and that it justifies the infliction of the ultimate penalty. Consequentialist defenses of capital punishment, however, tend to assume that capital punishment is (merely) morally permissible, as opposed to being morally obligatory.
Our goal here is to suggest that the debate over capital punishment is rooted in an unquestioned assumption and that the failure to question that assumption is a serious moral error. The assumption is that for governments, acts are morally different from omissions. We want to raise the possibility that an indefensible form of the act/omission distinction is crucial to some of the most prominent objections to capital punishment—and that defenders of capital punishment, apparently making the same distinction, have failed to notice that according to the logic of their theory, capital punishment is morally obligatory, not just permissible.
We suggest, in other words, that on certain empirical assumptions, capital punishment may be morally required, not for retributive reasons, but rather to prevent the taking of innocent lives. 7 The suggestion bears not only on moral and political debates, but also on constitutional questions. In invalidating the death penalty for juveniles, for example, the Supreme Court did not seriously engage the possibility that capital punishment for juveniles may help to prevent the death of innocents, including juvenile innocents. And if our suggestion is correct, it relates to many questions outside of the context of capital punishment. If omissions by the state are often indistinguishable, in principle, from actions by the state, then a wide range of apparent failures to act—in the context not only of criminal and civil law, but of regulatory law as well—should be taken to raise serious moral and legal problems. Those who accept our arguments in favor of the death penalty may or may not welcome the implications for government action in general.
In many situations, ranging from environmental quality to appropriations to highway safety to relief of poverty, our arguments suggest that in light of 7. In so saying, we are suggesting the possibility that states are obliged to maintain the death penalty option, not that they must inflict that penalty in every individual case of a specified sort; hence we are not attempting to enter into the debate over mandatory death sentences, as invalidated in Lockett v. Ohio, 438 U. S. 586 (1978), and Woodson v. North Carolina, 428 U. S. 280 (1976). For relevant discussion, see Martha C.
Nussbaum, Equity and Mercy, 22 PHIL. & PUB. AFF. 83 (1993). 8. Roper v. Simmons, 125 S. Ct. 1183 (2005). Here is the heart of the Court’s discussion: As for deterrence, it is unclear whether the death penalty has a significant or even measurable deterrent effect on juveniles, as counsel for the petitioner acknowledged at oral argument. . . . [T]he absence of evidence of deterrent effect is of special concern because the same characteristics that render juveniles less culpable than adults suggest as well that juveniles will be less susceptible to deterrence. . . To the extent the juvenile death penalty might have residual deterrent effect, it is worth noting that the punishment of life imprisonment without the possibility of parole is itself a severe sanction, in particular for a young person. Id. at 1196. These are speculations at best, and they do not engage with the empirical literature; of course, that literature does not dispose of the question whether juveniles are deterred by the death penalty. SUNSTEIN & VERMEULE 58 STAN. L. REV. 703 1/9/2006 10:51:05 AM 06 STANFORD LAW REVIEW [Vol. 58:703 imaginable empirical findings, government is obliged to provide far more protection than it now does, and it should not be permitted to hide behind unhelpful distinctions between acts and omissions. The foundation for our argument is a significant body of recent evidence that capital punishment may well have a deterrent effect, possibly a quite powerful one. 9 A leading national study suggests that each execution prevents some eighteen murders, on average. 0 If the current evidence is even roughly correct—a question to which we shall return—then a refusal to impose capital punishment will effectively condemn numerous innocent people to death. States that choose life imprisonment, when they might choose capital punishment, are ensuring the deaths of a large number of innocent people. 11 On moral grounds, a choice that effectively condemns large numbers of people to death seems objectionable to say the least.
For those who are inclined to be skeptical of capital punishment for moral reasons—a group that includes one of the current authors—the task is to consider the possibility that the failure to impose capital punishment is, prima facie and all things considered, a serious moral wrong. Judgments of this sort are often taken to require a controversial commitment to a consequentialist view about the foundations of moral evaluation. One of our principal points, however, is that the choice between consequentialist and deontological approaches to morality is not crucial here.
We suggest that, on certain empirical assumptions, theorists of both stripes might converge on the idea that capital punishment is morally obligatory. On 9. See, e. g. , Hashem Dezhbakhsh et al. , Does Capital Punishment Have a Deterrent Effect? New Evidence from Postmoratorium Panel Data, 5 AM. L. & ECON. REV. 344 (2003); H. Naci Mocan & R. Kaj Gittings, Getting Off Death Row: Commuted Sentences and the Deterrent Effect of Capital Punishment, 46 J. L. & ECON. 453, 453 (2003); Joanna M. Shepherd, Deterrence Versus Brutalization: Capital Punishment’s Differing Impacts Among States, 104 MICH. L. REV. 03 (2005) [hereinafter Shepherd, Deterrence Versus Brutalization]; Joanna M. Shepherd, Murders of Passion, Execution Delays, and the Deterrence of Capital Punishment, 33 J. LEGAL STUD. 283, 308 (2004) [hereinafter Shepherd, Murders of Passion]; Paul R. Zimmerman, Estimates of the Deterrent Effect of Alternative Execution Methods in the United States, 65 AM. J. ECON. & SOC. (forthcoming 2006) [hereinafter Zimmerman, Alternative Execution Methods], available at http://papers. ssrn. com/sol3/papers. cfm? abstract_id=355783; Paul R. Zimmerman, State Executions, Deterrence, and the Incidence of Murder, 7 J. APPLIED ECON. 63, 163 (2004) [hereinafter Zimmerman, State Executions]. 10. See Dezhbakhsh et al. , supra note 9, at 344. In what follows, we will speak of each execution saving eighteen lives in the United States, on average. We are, of course, suppressing many issues in that formulation, simply for expository convenience. For one thing, that statistic is a national average, as we emphasize in Part IV. For another thing, future research might find that capital punishment has diminishing returns: even if the first 100 executions deter 1800 murders, it does not follow that another 1000 executions will deter another 18,000 murders.
We will take these and like qualifications as understood in the discussion that follows. 11. In recent years, the number of murders in the United States has fluctuated between 15,000 and 24,000. FED. BUREAU OF INVESTIGATION, CRIME IN THE UNITED STATES tbl. 1 (2003), available at http://www. fbi. gov/ucr/03cius. htm. SUNSTEIN & VERMEULE 58 STAN. L. REV. 703 1/9/2006 10:51:05 AM December 2005] IS CAPITAL PUNISHMENT MORALLY REQUIRED? 707 consequentialist grounds, the death penalty seems morally obligatory if it is the only or most effective means of preventing significant numbers of murders; much of our discussion will explore this point.
For this reason, consequentialists should have little difficulty with our arguments. For deontologists, a killing is a wrong under most circumstances, and its wrongness does not depend on its consequences or its effects on overall welfare. Many deontologists (of course not all) believe that capital punishment counts as a moral wrong. But in the abstract, any deontological injunction against the wrongful infliction of death turns out to be indeterminate on the moral status of capital punishment if the death is necessary to prevent significant numbers of killings.
The unstated assumption animating much opposition to capital punishment among intuitive deontologists is that capital punishment counts as an “action” by the state, while the refusal to impose it counts as an “omission,” and that the two are altogether different from the moral point of view. A related way to put this point is to suggest that capital punishment counts as a “killing,” while the failure to impose capital punishment counts as no such thing and hence is far less problematic on moral grounds. We shall investigate these claims in some detail.
But we doubt that the distinction between state actions and state omissions can bear the moral weight given to it by the critics of capital punishment. Whatever its value as a moral concept where individuals are concerned, the act/omission distinction misfires in the general setting of government regulation. If government policies fail to protect people against air pollution, occupational risks, terrorism, or racial discrimination, it is inadequate to put great moral weight on the idea that the failure to act is a mere “omission. No one believes that government can avoid responsibility to protect people against serious dangers—for example, by refusing to enforce regulatory statutes—simply by contending that such refusals are unproblematic omissions. 12 If state governments impose light penalties on offenders or treat certain offenses (say, domestic violence) as unworthy of attention, they should not be able to escape public retribution by contending that they are simply refusing to act.
Where government is concerned, failures of protection, through refusals to punish and deter private misconduct, cannot be justified by pointing to the distinction between acts and omissions. It has even become common to speak of “risk-risk tradeoffs,” understood to arise when regulation of one risk (say, a risk associated with the use of DDT) gives rise to another risk (say, the spread of malaria, against which DDT has been effective). 13 Or suppose that an air pollutant creates adverse health effects 12.
Indeed, agency inaction is frequently subject to judicial review. See Ashutosh Bhagwat, Three-Branch Monte, 72 NOTRE DAME L. REV. 157 (1996). 13. See generally RISK VERSUS RISK: TRADEOFFS IN PROTECTING HEALTH AND THE ENVIRONMENT (John D. Graham & Jonathan Baert Wiener eds. , 1995) (considering “risk-risk tradeoffs” on topics such as DDT, the use of estrogen for menopause, and clozapine theory SUNSTEIN & VERMEULE 58 STAN. L. REV. 703 1/9/2006 10:51:05 AM 708 STANFORD LAW REVIEW [Vol. 58:703 ut also has health benefits, as appears to be the case for ground-level ozone. 14 It is implausible to say that, for moral reasons, social planners should refuse to take account of such tradeoffs; there is general agreement that whether a particular substance ought to be regulated depends on the overall effect of regulation on human well-being. As an empirical matter, criminal law is pervaded by its own risk-risk tradeoffs. When the deterrent signal works, a failure to impose stringent penalties on certain crimes will increase the number of those crimes.
A refusal to impose such penalties is, for that reason, problematic from the moral point of view. It should not be possible for an official—a governor, for example—to attempt to escape political retribution for failing to prevent domestic violence or environmental degradation by claiming that he is simply “failing to act. ” The very idea of “equal protection of the laws,” in its oldest and most literal sense, attests to the importance of enforcing the criminal and civil law so as to safeguard the potential victims of private violence. 5 What we are suggesting is that to the extent that capital punishment saves more lives than it extinguishes, the death penalty produces a risk-risk tradeoff of its own—indeed, what we will call a life-life tradeoff. Of course, the presence of a life-life tradeoff does not resolve the capital punishment debate. By itself, the act of execution may be a wrong, in a way that cannot be said of an act of imposing civil or criminal penalties for, say, environmental degradation.
But the existence of life-life tradeoffs raises the possibility that for those who oppose killing, a rejection of capital punishment is not necessarily mandated. On the contrary, it may well be morally compelled. At the very least, those who object to capital punishment, and who do so in the name of protecting life, must come to terms with the possibility that the failure to inflict capital punishment will fail to protect life—and must, in our view, justify their position in ways that do not rely on question-begging claims about the distinction between state actions and state omissions, or between killing and letting die.
We begin, in Part I, with the facts. Raising doubts about widely held beliefs based on older studies or partial information, recent studies suggest that capital punishment may well save lives. One leading study finds that as a national average, each execution deters some eighteen murders. Our question whether capital punishment is morally obligatory is motivated by these findings; our central concern is that foregoing any given execution may be equivalent to condemning some unidentified people to a premature and violent death.
Of course, social science can always be disputed in this contentious domain, and spirited attacks have been made on the recent studies;16 hence, we mean to for schizophrenia). 14. See Am. Trucking Ass’ns, Inc. v. EPA, 175 F. 3d 1027, 1051-53 (D. C. Cir. 1999). 15. See RANDALL KENNEDY, RACE, CRIME, AND THE LAW (1997). 16. See Richard Berk, New Claims About Executions and General Deterrence: Deja SUNSTEIN & VERMEULE 58 STAN. L. REV. 703 1/9/2006 10:51:05 AM December 2005] IS CAPITAL PUNISHMENT MORALLY REQUIRED? 709 outline, rather than to defend, the relevant evidence here.
But we think that to make progress on the moral issues, it is productive and even necessary to take those findings as given and consider their significance. Those who would like to abolish capital punishment, and who find the social science unconvincing, might find it useful to ask whether they would maintain their commitment to abolition if they were firmly persuaded that capital punishment does have a strong deterrent effect. We ask such people to suspend their empirical doubts in order to investigate the moral issues that we mean to raise here.
In Part II, the centerpiece of the Article, we offer a few remarks on moral foundations and examine some standard objections to capital punishment that might seem plausible even in light of the current findings. We focus in particular on the view that capital punishment is objectionable because it requires affirmative and intentional state “action,” not merely an “omission. ” The act/omission distinction, we suggest, systematically misfires when applied to government, which is a moral agent with distinctive features.
The act/omission distinction may not even be intelligible in the context of government, which always faces a choice among policy regimes, and in that sense cannot help but “act. ” Even if the distinction between acts and omissions can be rendered intelligible in regulatory settings, its moral relevance is obscure. Some acts are morally obligatory, while some omissions are morally culpable. If capital punishment has significant deterrent effects, we suggest that for government to omit to impose it is morally blameworthy, even on a deontological account of morality.
Deontological accounts typically recognize a consequentialist override to baseline prohibitions. If each execution saves an average of eighteen lives, then it is plausible to think that the override is triggered, in turn triggering an obligation to adopt capital punishment. Once the act/omission distinction is rejected where government is concerned, it becomes clear that the most familiar, and plausible, objections to capital punishment deal with only one side of the ledger: the objections fail to take account of the exceedingly arbitrary deaths that capital punishment may deter.
The realm of homicide, as we shall call it, is replete with its own arbitrariness. We consider rule-of-law concerns about the irreversibility of capital punishment and its possibly random or invidious administration, a strict scrutiny principle that capital punishment should not be permitted if other means for producing the same level of deterrence are available, and concerns about slippery slopes. We suggest that while some of these complaints have Vu All over Again? , 2 J. EMPIRICAL LEGAL STUD. 03 (2005); see also Deterrence and the Death Penalty: A Critical Review of New Evidence: Hearings on the Future of Capital Punishment in the State of New York Before the New York State Assemb. Standing Comm. on Codes, Assemb. Standing Comm. on Judiciary, and Assemb. Standing Comm. on Correction, 2005 Leg. , 228th Sess. 1-12 (N. Y. 2005) (statement of Jeffrey Fagan, Professor of Law and Pub. Health, Columbia Univ. ), available at www. deathpenaltyinfo. org/FaganTestimony. pdf [hereinafter Deterrence and the Death Penalty].
For a response to Fagan’s testimony, see generally Shepherd, Deterrence Versus Brutalization, supra note 9. SUNSTEIN & VERMEULE 58 STAN. L. REV. 703 1/9/2006 10:51:05 AM 710 STANFORD LAW REVIEW [Vol. 58:703 merit, they do not count as decisive objections to capital punishment, because they embody a flawed version of the act/omission distinction and generally overlook the fact that the moral objections to capital punishment apply even more strongly to the murders that capital punishment apparently deters.
In Part III, we conjecture that various cognitive and social mechanisms, lacking any claim to moral relevance, may cause many individuals and groups to subscribe to untenable versions of the distinction between acts and omissions or to discount the lifesaving potential of capital punishment while exaggerating the harms that it causes. An important concern here is a sort of misplaced concreteness, stemming from heuristics such as salience and availability. The single person executed is often more visible nd more salient in public discourse than any abstract statistical persons whose murders might be deterred by a single execution. If those people, and their names and faces, were highly visible, we suspect that many of the objections to capital punishment would at least be shaken. As environmentalists have often argued, “statistical persons” should not be treated as irrelevant abstractions. 17 The point holds for criminal justice no less than for pollution controls. Part IV expands upon the implications of our view and examines some unresolved puzzles.
Here we emphasize that we hold no brief for capital punishment across all contexts or in the abstract. The crucial question is what the facts show in particular domains. We mean to include here a plea not only for continuing assessment of the disputed evidence, but also for a disaggregated approach. Future research and resulting policies would do well to take separate account of various regions and of various classes of offenders and offenses. We also emphasize that our argument is limited to the setting of life-life tradeoffs— in which the taking of a life by the state will reduce the number of lives taken overall.
We express no view about cases in which that condition does not hold—for example, the possibility of capital punishment for serious offenses other than killing, with rape being the principal historical example, and with rape of children being a currently contested problem. Such cases involve distinctively difficult moral problems that we mean to bracket here. A brief conclusion follows. I. EVIDENCE For many years, the deterrent effect of capital punishment was sharply disputed. 18 In the 1970s, Isaac Ehrlich conducted the first multivariate 17. Lisa Heinzerling, The Rights of Statistical People, 24 HARV.
ENVTL. L. REV. 189, 189 (2000). 18. Compare, e. g. , Isaac Ehrlich, The Deterrent Effect of Capital Punishment: A Question of Life and Death, 65 AM. ECON. REV. 397, 398 (1975) (estimating each execution deters eight murders), with William J. Bowers & Glenn L. Pierce, The Illusion of Deterrence in Isaac Ehrlich’s Research on Capital Punishment, 85 YALE L. J. 187, 187 (1975) (finding Ehrlich’s data and methods unreliable). A good overview is Robert Weisberg, The Death SUNSTEIN & VERMEULE 58 STAN. L. REV. 703 1/9/2006 10:51:05 AM December 2005] IS CAPITAL PUNISHMENT MORALLY REQUIRED? 711 egression analyses of the death penalty, based on time-series data from 1933 to 1967, and concluded that each execution deterred as many as eight murders. 19 But subsequent studies raised many questions about Ehrlich’s conclusions—by showing, for example, that the deterrent effects of the death penalty would be eliminated if data from 1965 through 1969 were eliminated. 20 It would be fair to say that the deterrence hypothesis could not be confirmed by the studies that have been completed in the twenty years after Ehrlich first wrote. 21 More recent evidence, however, has given new life to Ehrlich’s hypothesis. 2 A wave of sophisticated multiple regression studies have exploited a newly available form of data, so-called “panel data,” that uses all information from a set of units (states or counties) and follows that data over an extended period of time. A leading study used county-level panel data from 3054 U. S. counties between 1977 and 1996. 23 The authors found that the murder rate is significantly reduced by both death sentences and executions. The most striking finding was that on average, each execution results in eighteen fewer murders. 24 Other econometric studies also find a substantial deterrent effect.
In two papers, Paul Zimmerman uses state-level panel data from 1978 onwards to measure the deterrent effect of execution rates and execution methods. He estimates that each execution deters an average of fourteen murders. 25 Using state-level data from 1977 to 1997, H. Naci Mocan and R. Kaj Gittings find that each execution deters five murders on average. 26 They also find that increases in the murder rate result when people are removed from death row Penalty Meets Social Science: Deterrence and Jury Behavior Under New Scrutiny, 1 ANN. REV. L. & SOC. SCI. 151 (2005). 19.
See Ehrlich, supra note 18, at 398; Isaac Ehrlich, Capital Punishment and Deterrence: Some Further Thoughts and Additional Evidence, 85 J. POL. ECON. 741 (1977). 20. For this point and an overview of many other criticisms of Ehrlich’s conclusions, see Richard O. Lempert, Desert and Deterrence: An Assessment of the Moral Bases of the Case for Capital Punishment, 79 MICH. L. REV. 1177 (1981). 21. See id. ; Weisberg, supra note 18, at 155-57. 22. Even as this evidence was being developed, one of us predicted, perhaps rashly, that the debate would remain inconclusive for the foreseeable future. See Adrian Vermeule, Interpretive Choice, 75 N.
Y. U. L. REV. 74, 100-01 (2000). 23. See Dezhbakhsh et al. , supra note 9, at 359. 24. Id. at 373. 25. Zimmerman, Alternative Execution Methods, supra note 9; Zimmerman, State Executions, supra note 9, at 190. 26. Mocan & Gittings, supra note 9, at 453. Notably, no clear evidence of a deterrent effect from capital punishment emerges from Lawrence Katz et al. , Prison Conditions, Capital Punishment, and Deterrence, 5 AM. L. & ECON. REV. 318, 330 (2003), which finds that the estimate of deterrence is extremely sensitive to the choice of specification, with the largest estimate paralleling that in Ehrlich, supra note 18.
Note, however, that the principal finding in Katz et al. , supra, is that prison deaths do have a strong deterrent effect and a stunningly large one—with each prison death producing a reduction of “30-100 violent crimes and a similar number of property crimes. ” Id. at 340. SUNSTEIN & VERMEULE 58 STAN. L. REV. 703 1/9/2006 10:51:05 AM 712 STANFORD LAW REVIEW [Vol. 58:703 and when death sentences are commuted. 27 A study by Joanna Shepherd, based on data from all states from 1997 to 1999, finds that each death sentence deters 4. 5 murders and that an execution deters 3 additional murders. 8 Her study also investigates the contested question whether executions deter crimes of passion and murders by intimates. Although intuition might suggest that such crimes cannot be deterred, her own finding is clear: all categories of murder are deterred by capital punishment. 29 The deterrent effect of the death penalty is also found to be a function of the length of waits on death row, with a murder deterred for every 2. 75 years of reduction in the period before execution. 30 Importantly, this study finds that the deterrent effect of capital punishment protects African-American victims even more than whites. 1 In the period between 1972 and 1976, the Supreme Court produced an effective moratorium on capital punishment, and an extensive unpublished study exploits that fact to estimate the deterrent effect. Using state-level data from 1977 to 1999, the authors make before-and-after comparisons, focusing on the murder rate in each state before and after the death penalty was suspended and reinstated. 32 The authors find a substantial deterrent effect: “[T]he data indicate that murder rates increased immediately after the moratorium was imposed and decreased directly after the moratorium was lifted, providing support for the deterrence hypothesis. 33 A recent study offers more refined findings. 34 Disaggregating the data on a state-by-state basis, Joanna Shepherd finds that the nationwide deterrent effect of capital punishment is entirely driven by only six states—and that no deterrent effect can be found in the twenty-one other states that have restored capital punishment. 35 What distinguishes the six from the twenty-one? The answer, she contends, lies in the fact that states showing a deterre

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