The article of Cass R. Sunstein and Adrian Varmeule, “Is Capital Punishment Morally Required? The Relevance of Life-Life Tradeoffs” is a rare example of outright preposterous sophistry. The whole argument is based on what Sunstein and Varmeule refer to as “facts,” “evidence,” and “empirical findings”. Well, no - those statements most assuredly are not facts. Taking an arbitrary number out of an arbitrarily chosen article on a very contentious issue does not render it a “fact.” For an overview of the article by Dezhbakhsh et al., “Does Capital Punishment Have a Deterrent Effect? New Evidence from Postmoratorium Panel Data,” which is the basis of Sunstein and Vermeule’s claims, see my post “Three kinds of lies.”
Sunstein and Vermeule do not attack death penalty opponents directly – instead, they start with targeting moderate, non-radical defenders of capital punishment whom they call consequentialists, and try to prove that the concept of mere moral permissibility of capital punishment is a deficiency of “cognitive processes” (aka stupidity) and “a serious moral error” (aka lack of moral logic, or outright immorality). To accomplish this, Sunstein and Vermeule use a rare combination of just about every type of fallacy known to man, supported staunchly by the “fact” of a life-for-a-life tradeoff of eighteen innocent murder victims for each and every executed murderer. To Sunstein and Vermeule, the death penalty is not optional – rather, it is obligatory and its imposition imperative to save very tangible innocent lives that would otherwise undoubtedly be lost. In fact, Sunstein and Vermeule repeatedly accuse de-facto-non-executing states and jurisdictions that do not provide for capital punishment of “ensuring the deaths of a large number of innocent people,” and their alarmist rhetoric does not shy away from even more drastic terms and comparisons.
I believe that Cass R. Sunstein and Adrian Vermeule could benefit from a closer look at some readily available data that is not manipulated by regression analysis, especially in the international context. According to their theory, the European Union, along with the majority of countries globally that have banned capital punishment, should be drowning in rivers of blood spilled by undeterred, not ‘disincentivized’ murderers that are not swayed by a mere life sentence or other non-lethal penalties. Conversely, China, with about 5000 executions per year, should be a virtually crimeless model society where homicide should be extinct by now, or where at least 90,000 potential victims would be saved each year under the Sunstein-Vermeule Equation. By the same logic, picking some 5% of the US population Dezhbakhsh et al deem to be at risk of becoming murderers (mostly young urban African American Democrats with National Rifle Association memberships) would ensure that the remainder of the population experience virtually no fatalities from homicide at all, since their potential murderers will be executed even before they harm any of the rest.
Sunstein and Vermeule claim that it is the government’s moral obligation to execute every single murderer, and to do it as quickly as possible, since each 2.75 years of delay costs one life. Miscarriages of justice (i.e., executions of innocent people) are simply to be considered part of the cost of saving other lives. Also dangerous according to Sunstein and Vermeule is the execution of too few convicts, since this actually increases the national murder rate due to a “brutalization effect.” Significantly, Sunstein and Vermeule do not mention what should happen when there are too few offenders to be executed to begin with. Is this a sign of reliable immunity from homicide? Instead, they quote the social benefits of putting 500 convicts to death next year. To put this in perspective: in 2010, the US executed 48 individuals, placing it in the august company of such progressive democracies as China (up to 5000 executions), Iran (252+), North Korea (60+), Yemen (53+), and well ahead of such squeamish jurisdictions as Saudi Arabia (27+), Libya (18+), and Syria (17+). The United States was one of the few countries (a group including the People’s Republic of China, India, and Indonesia) that repeatedly voted against United Nations General Assembly resolutions to abolish the death penalty. (Source: Wikipedia, quoting Amnesty International data).
Sunstein and Vermeule’s fervent activism for capital punishment seems incomprehensible until the reader reaches pages 28-29 of their article. Here, the true reasons behind their impassioned appeal for increased application of the death penalty are revealed: the authors think that it is insupportably costly - and, frankly, unnecessary - to introduce social welfare programs such as job training and education to prevent violent crime from occurring in the first place. Why bother eliminating inequality of opportunity and income if the government can simply terrorize its citizens by increasing executions? And that is what is happening right now: the United States reports 2.3 million prisoners, compared to 1.6 million in China, almost twice the Chinese number although the US population is only a quarter of China’s. With US population accounting for a mere 5% of the world population, 25% of the world’s inmates are situated in US prisons. Perhaps Sunstein and Vermeule should give us their thoughts on that?
For more information on US prison statistics, see a NYT article “U.S. prison population dwarfs that of other nations.”