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The morality of capital punishment

Gary S BeckerNobel laureate in Economics; Professor of Economics and Sociology, University of Chicago.

The US is often criticised for its refusal to abolish capital punishment. Many now claim that abolition of capital punishment is a precondition of a civilised criminal-law system. Nobel laureate Gary Becker disagrees.

by Gary S Becker

European governments are adamantly opposed to capital punishment – the European Union bans it outright – and some Europeans consider its use in the United States barbaric. Indeed, many European intellectuals argue that not just capital punishment, but punishment in general, does not deter criminals.

But, whereas Europeans, with crime rates well below American rates for the past half-century, could long afford to be relatively “soft” on most crimes, they have seen their crime rates increase sharply during the past twenty years. By contrast, American rates have fallen, in part because of greater use of punishment.

This includes capital punishment. I support executing some people convicted of murder because – and only because – I believe that it deters other murders. If I did not believe that, I would oppose capital punishment, because revenge and other possible motives should not be a basis for public policy.

Serious empirical research on capital punishment in the US began with a pioneering study by Isaac Ehrlich, published in 1975 in the American Economic Review. Some subsequent studies have sometimes found a much weaker deterrent effect, while others have found a much stronger effect. The available data are quite limited, however, so one should not base any conclusions solely on the econometric evidence.

Of course, public policy on any punishment cannot wait until the evidence is perfect. But, even with the limited quantitative evidence available, there are good reasons to believe that capital punishment deters.

Most people, and murderers in particular, fear death, especially when it follows swiftly and with considerable certainty following the commission of a murder. As David Hume put it in discussing suicide, “no man ever threw away life, while it was worth living. For such is our natural horror of death…” Likewise, Schopenhauer believed that “as soon as the terrors of life reach a point at which they outweigh the terrors of death, a man will put an end to his life. But the terrors of death offer considerable resistance…”

Opponents of capital punishment frequently proclaim that the state has no moral right to take anyone’s life, including that of the most reprehensible murderer. Yet that is absolutely the wrong conclusion for anyone who believes that capital punishment deters.

To see why, suppose that for each murderer executed (instead of, say, receiving life imprisonment), the number of murders is reduced by three, which is a much lower number than Ehrlich’s and some other estimates of the deterrent effect. This implies that for each murderer not executed, three innocent victims would die. In fact, the government would indirectly be “taking” many lives if it did not use capital punishment.

Saving three innocent lives for every person executed seems like a very attractive trade-off, and even two lives saved per execution seems like a persuasive benefit-cost ratio for capital punishment. Admittedly, however, the argument in favor of capital punishment becomes less clear-cut as the number of lives saved per execution falls. But, even if only one life were saved per execution, the tradeoff might still be desirable if the life saved is much better than the life taken, which would usually be the case.

Many people object to comparing the quality of the life spared and the life taken. Yet I do not see how to avoid such a comparison. Consider a career criminal who robs and kills a victim who led a decent life and left several children and a spouse behind. Suppose it would be possible to save the life of an innocent victim by executing such a criminal. To me it is obvious that saving such a victim’s life must count for more than taking the criminal’s life. Obviously, not all cases are so unambiguous, but a comparison of the qualities of individual lives must be part of any reasonable social policy.

This helps explain why capital punishment should be used only for murders, and not for lesser crimes. When the tradeoff is between taking lives and, say, reducing property theft, the case for milder punishments is far stronger. Although severe assaults, including some gruesome rapes, may approach some murders in severity, and might conceivably call for capital punishment, I do not support its use in these cases.

A powerful argument for reserving capital punishment for murders is “marginal deterrence.” If assault were punished with execution, perpetrators would have an incentive to kill their victims to avoid discovery (which is a major reason why the severity of punishments more generally should be matched to the severity of crimes).

One complication is that capital punishment may make a murderer fight harder to avoid being captured, which could lead to more deaths. But, while marginal deterrence is important, I believe the resistance of murderers to being captured, possibly at the expense of their own lives, is really indirect evidence that criminals do fear capital punishment.

Of course, I worry about the risk of executing the innocent. My support for capital punishment would weaken greatly if the rate of killing innocent people were as large as that claimed by many. However, I believe that the appeal process in the US offers enormous protection, not so much against wrongful conviction as against wrongful execution, so that there are very few, if any, documented cases of innocent people being killed. And this process has been strengthened enormously with the development of DNA identification.

Again, the debate about capital punishment is essentially a debate about deterrence (which may be reduced by lengthy appeals). I can understand that some people are skeptical about the evidence, although I believe they are wrong about both that and the common sense of the issue. It is very disturbing to take someone’s life, even a murderer’s life, but sometimes highly unpleasant actions are necessary to prevent even worse behavior that takes the lives of innocent victims.

Copyright: Project Syndicate, 2006.

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Time Bomb

Hamish: The following is from a regular Webdiarist who wishes to remain anonymous in this matter:

Mike Lyvers, Rob Wearne has a point but I not agree with him. This is a very very serious issue. But first I would suggest that he and everyone else stop using the term nutters. To use such terms only stigmatises people who are mentally ill, and carries the inference that they are humans of such a low ranking, (like Hitler’s untermensch) that their fates and lives don’t matter, that they have no place in society and are people to always be feared, and therefore shut away out of sight, just in case. It's no wonder they are reluctant to seek help in many cases.

I don't believe in political correctness, but I feel that to use the term nutters to describe people who are mentally ill is unhelpful and cruel. People do not choose to be mentally ill. They just are, and society today fails them terribly, and in doing so, often pays an awful price. It is not so long ago that people in wheelchairs or kids in braces were similarly treated, and were referred to dismissively as cripples. So Rob can we desist in the use of such terms as nutters, and for those so inclined, loonies also?

But that said, society has a right to be concerned about the total failure of the mental health system in this country and I tell this story anonymously for obvious reasons, but it should be told. There is real risk that one day we will face another Port Arthur  unless the mental health system is fixed.

Some years ago a young person I know well developed paranoid schizophrenia, after no previous history. We just happened to be staying in the same place (a mutual friend’s farm) that weekend. He was intelligent and was one of the kindest and most amiable of young people you would ever meet. He would go out of his way to help people in need and would often just give things he valued away because someone he knew needed them more.

 On this, the day he first presented, clearly disturbed, he was very frightened and thought the world was out to get him.  He was also having visual hallucinations. After a few hours some of us were able to talk to him, in a calmer moment, and he was so rational and normal at that point we thought everything was OK. He walked away from us and five minutes later we saw him pass, with three firearms and a stack of ammunition. We all freaked out, as you can imagine, and disarmed him and asked him what he was doing. He said he was going out to take on the world and deal with these people who were after him.  Five young children were running around the yard. His immediate family were shell shocked, so two of us got him to a major hospital in the nearest city very smartly.

 You would have thought we would be taken seriously. He still had a pocket full of shotgun cartridges. But no. We had to argue black and blue for hours to convince the hospital to admit him. We were told there were no beds in the psychiatric ward and to come back tomorrow! We refused to go away and eventually he was admitted and began many years of treatment, with many serious episodes in the following years that placed him in great danger, and nearly took his life a couple of times.

Recently he went into another major very paranoid episode, believing people were after him. He had recently met relatives at his door with a heavy stick which he said he had been chasing them with. It took days of fighting the mental health bureaucracy and the police to get intervention and he was eventually hospitalised, for just 7 days.

He was still quite unwell and being very worried, I took on the responsibility on behalf of the family of calling the crisis team. They said to contact the mental health authorities, giving the name of a senior medical officer. I emailed that doctor urgently. This young man's case was well known to that doctor.

There was no reply. So after several phone calls to the switch saying the matter was urgent, finally a message came back. Call the crisis team. Many people are used to these sorts of bureaucratic ping pong games, where each of two agencies keeps passing responsibility to the other. I pointed out to both sides that this ping pong situation had developed. More phone calls, more stress. In the end the crisis team did go out after several hours. A day or so later I got an email reply from the medical officer which went along these lines: I must ask you not to email me again as I do not always have time to read emails. In future ring me and if you cannot get me, when I have time I will get back to you. Enough said.

During the course of all this, I tried to get the police to assist, as the crisis team would not go out there without them, and understandably, given the facts. I was told no, it would only most likely be a waste of their resources. I asked then that a note be put on the file, and was told in no uncertain terms by the sergeant on duty that he was not going to put any notes on the file. The note I wanted put on the file was the risk I saw to the community, given the history, and that if his failure to act resulted in a siege of some sort, I wanted family to be called before the police went in with all guns blazing and shot this young fellow dead, as is their established habit in such situations. He refused. So I had the whole history emailed to him. Bureaucrats always like to protect their rear ends, and so the police finally went.

This sort of drama is likely being played out all over Australia every week. Schizophrenia affects one percent of the population. It is just a matter of time before there is another Port Arthur. Prime Minister Howard is doing his best to privatise the whole health system, and where will that leave the mentally ill, and the community?

Does anyone wonder why so many mentally ill people end up in gaol and why there are tragedies every now and then? The above case sets out some of the reasons. The mental health system is in denial and dysfunction. People working in it are stressed, overworked and are hence themselves victims of that dysfunction.

Between episodes, and while on prescribed medication, this same young man is able to lead a perfectly normal life, holding a job, going for holidays overseas on his own, doing normal suburban activities, and so on. But if I or his family alerted his immediate neighbours, and asked to be contacted if he started behaving abnormally, I would have to be sure that none of them thought like Rob Wearne. Given the number of people out there holding such views, my best course is to keep silent, which I do, hoping for the best.

No Rob: We cannot just lock the mentally ill up. But that is exactly what we are doing, after the fact. The gaols are our new psychiatric hospitals. Society needs to be protected from people like Bryant, but the Bryants should not be continually punished for being what they are. Modern gaols are far harsher places than the old mental wards for the criminally insane used to be.

Other Bryants are surely out there, like time bombs ticking away in the community. This bloody staggering system has to be fixed and fixed fast. We as a society may not be able to avert every disaster, but the above bureaucratic fiasco is totally inexcusable. It is no wonder people like Bryant slip through the mental health system. But no one has the right to suggest that it was the people who knew him who failed. I can say that with the certainty that terrifying experience provides.

To Anon.


To clarify my comments were directed at the 'professionals' that examined Bryant before that fateful day - not occasional acquaintances.

However notwithstanding - in relation to the Bryant case there were clearly people that knew him well and new of his IQ and history of mental disability (torturing animals and so forth).

Although we should not lock up every one of these people neither should he have been allowed to purchase firearms and such.

The result of the Port Arthur tragedy saw some of the most illiberal laws ever passed in this country and a massive impost to the taxpayer that can be circumvented by any criminal with $250 and a contact at Flemington markets.

Someone other than the law abiding should have taken responsibility.


I seem to have confused Malcolm Duncan.  For that I apologise.  And, as usual, this thread, which  was commenced with an interesting and thought provoking article which made a lot of sense about an important topic, has degenerated into something resembling a discussion at a coven of Australian Democrats.

Anybody who does not think that deterrence works to some degree must have a bag over their head.  Really.  If you disagree with me, observe your own behaviour next time you are doing 55 in a 50 zone and you observe a speed camera sign.  Or  police car.

Anyone who states (as Malcolm Duncan apparently does) that deterrence is only of any utility if it works every time is playing word games.  If deterrence works, say, 50% of the time it still has a massive effect.

Anyone who states that economics is not a useful (but not the only useful) guide to thought and policy is crippling their own analytical capacity.  Economics is about the distribution of goods and services.  All of us, except for a couple of Stylites up poles in the desert, are at least a bit interested in the distribution of goods and services - witness all the wittering and mewling about a trivial increase in the price of petrol.

The important point made in the lead article was that the death penalty is a good idea if, on balance, it saves lives.  What's wrong with that?  We are happy to allow people to die for all sorts of reasons including sloppy self indulgence, and comfort.  Otherwise we would ban cigarettes, beer, and cars over (say) 10 years old. 

We are happy to indirectly allow the death penalty to save Australian lives, which is why so many people in Australia agree that drug smugglers in Asia should go through the trapdoor.

There are a number of dopey assumptions in the lead article, but it is silly to throw out the baby altogether and reject economics as a useful analytical tool, and it is wicked to be hypocritical about human life.  (In passing, how many death penalty opponents are equally energetic in support of euthenasia?)

data/evidence for policies vs personal beliefs based on beliefs

It would be nice," yawn", that people could understand the difference between making a claim based upon one's, or someone else's, opinion and guesses, from personal experience, to the very different and demanding science of studying data,an  the academic practice; of reviewing careful studies, and then to base an opinion upon data.

I agree with the wise statement just earlier about economics. Please consider the links refuting to professors spin opinion dressed as academia, and feel free to comment on such data.links seen on M Duncan's comment and my own. Plenty others available on research.

One should consider who funds the Chair of the Professor. Maybe Arnie does want some zapping credibility.The constitution still needs to be changed for a non BIUSA to be Pres.

Although this article was about the flawed claim that "death penalty saves lives by deterring murders" I  note that use of the death penalty for drug runners is highly controversial in our own community and how little media coverage has been given to the sentencing of the Australians who were betrayed by our AFP to the Indonesian "justice system," knowing the death penalty applies should they prove guilty.

Perhaps we need stooges softening this scandal by pretending such death penalties are of benefit to the community. Even the economics of it are expensive. Death row costs a fortune.

For the record, I used to be for the death penalty. After considering the conflict of such a support with my own morals and until I read the arguments and the data, and watched to debacle of US Justice in applying it, as well as our neighbours.

Does it save lives and prevent murders? Show the evidence. Does it cause harm? Yes, wrong convictions, expensive, loss of witnesses for ever, expensive, moral dilemmas etc. We criticise Sharia law yet taking one's life is the ultimate physical punishment.

This is the same argument as some use for pre-emptive strikes. Such would allegedly save lives so does the same flawed logic find favour? You bet. When it suits.


Crime and Punishment

Richard, re your "In passing, how many death penalty opponents are equally energetic in support of euthenasia?" Are you seriously making a comparison? One is an act of vengeance, the other an act of compassion, there is no comparison.

An apologist for the Vikings, while rightly extolling the cultural legacy of that movement also drew attention to the fact that the word "law" was introduced into the English language by the Vikings but missed the point that "laws" are only neccessary for those who do not know how to behave. As a society we should be looking at repatriating transgressors as a solution, not trying to deter them by threat of retribution. It doesn't work. This excludes the small minority of socio/psychopathic intractables for whom some other solution has to be found. I'm with Malcolm on this but cruelty of any description is totally abhorrent to me.

your points are fair Rob

But aren't you really asking for reform in a variety of institutions like mental health etc?

One my old favourites, Neville Wran, was of course disappointingly responsible for the disastrous state of mental health in NSW. Who knows what dangerous folk he unleashed upon us, along with innocent sufferers out into the cold?

If Morris Iemma was genuine in his first interview - and I'm still waiting - he promised great reforms in that area.

I don't think it was Neville on a vote buying exercise rather than the beginning of the hand-over of some of the State's most precious real estate sites to their favourite constituents - property developers with a fist full of cash. Redfern is next as Housing Commission battlers get banished out of the trendy inner city.

Isn't there something rather tasteless about an economist praising the death penalty?

Ignorant Economics

I just love economists. Such determinism in the face of totally inaccurate, pathetically unscientific models of the world.

Economics, the pseudo-science that loves to make predictions about essentially money, while all the time ignoring many of the factors that make life worthwhile, such as the environment, or a fair and just society. How can you measure these intangibles? Too hard for the economists, obviously.

Here we have a lovely piece of anti-Europe propaganda masquerading as a justification for capital punishment. The US version of crime and punishment in some states, relying as it does on capital punishment, reminds me of the Islamic "eye for an eye".

The European abhorrence to capital punishment is based on centuries of conflict and a deep cultural commitment to solve problems rather than to claim they are solved because a "problem person" has been eliminated. People desperate or depressed enough to commit a serious crime don't think about the consequences. And too bad if you got the wrong guy (yes it happens quite frequently, especially to people who don't have money to hire expensive lawyers). Comparing statistics for the US and Europe on crime and punishment is like trying to justify gun ownership by comparing the US with Switzerland. Chalk and cheese.

I for one would like to know if Arnie Schwarzenegger is funding Prof Becker's "research".

When will they stop handing out Nobel prizes for economics? It just gives the bastards more credibility than they deserve.

Eye for an eye

G Pulford, (that's a bit impersonal, can we "know" you?), while I agree with every thing else you have to say on this subject, "an eye for an eye" is a Judaic Biblical injunction.


Re: Eye for an Eye

Actually, I read somewhere that the "eye for an eye, tooth for a tooth" thing from the Bible is not meant as a call for vengeance, but simply as a call for making the punishment appropriate to the crime. Of course this was written at a time when execution for infractions far less than murder were probably commonplace across a wide range of religions and cultures. So maybe it was really an anti-capital punishment statement. Something to think about.

eyebrows in full payment

Nah, Will, willowing the chaff. If that were so it would have said "an eyebrow for an eye" although with some people like our leader that may be over payment.

The Innocence Project

A good article in The Independent on people re-examining capital punishment verdicts in Texas.

As the Innocence Project itself put it in a statement, the release of its report "marks the first time in the nation that scientific evidence showing an innocent person was executed has been submitted to a government entity that is legally obligated to investigate cases, reach conclusions and direct system-wide reviews to determine the extent of the problem". In other words, it could conceivably be the beginning of the end of the death penalty in Texas.


Perhaps most poignant for Willingham's surviving relatives is that, at the time of execution, a similar case was going through the Texas legal system, that of Ernest Willis, who had been sentenced to death for his alleged role in setting a fatal fire in west Texas in 1987. Dr Hurst examined his case, too, found the forensic evidence similarly flawed and said he saw no evidence of arson. Willis was able to have his case reopened and dismissed. He walked out of death row a free man seven months after Willingham's execution.

All this adds up to a potentially explosive cocktail of political and social issues. Texans may be more attached than most Americans to the death penalty, but even they tend to draw the line at putting innocent people to death. One candidate in the governor's race, the humourist and former singer Kinky Friedman, does not appear to have been harmed by his record of campaigning on behalf of death row prisoners. One of Friedman's campaign lines is: "Texas: 50th in education, first in executions... how's that working for you?"

Burn all prisons!

Geoff maintains that, "(execution)... brutalises society and the legal system in a way that imprisonment, despite its harshness, does not."

Everything I've read about being in prisons in Australia and overseas convinces me I'd sooner be deep-fried in an electric chair rather than be forced to live in the company of the sexually predatory animals that prison breeds. Then there are the added discomforts of drugs, the bashings (by felons and warders), the murders, etc. that the inhumane prison system breeds.

Prisons are an anachronistic relic from a cruel age. Like religion!

Reform The Death Penalty?

You can reform prisons.

No Death Penalty -- For The Sake Of Life

I cannot accept that the death penalty deters murder and I would be highly sceptical of any quanitative "scientific" study that purported to demonstrate that it does. If I could be bothered to read it, which I'm not. How on earth could such a thing be measured?

Even if it could be demonstrated that the death penalty had a reductive impact on the murder rate, through deterrence at the individual level, I still would be opposed to it. Intuitively, it seems to me likely that the death penalty would also have malign influence probably at least offsetting the deterrence. It brutalises society and the legal system in a way that imprisonment, despite its harshness, does not. It officially cheapens life. It creates a social ambience in which violence and murder are more likely to happen.

That is my assertion based on nothing more than commonsense and intuition. Measure that.

Geoff, you're in good company.

Aristotle also thought intuition and common sense logic were all that were required to arrive at the truth, thus actual empirical testing wasn't necessary. Thus he proclaimed, based on intuition and common sense, that heavier objects must necessarily fall faster than lighter objects. When Galileo finally decided to test this more than a millennium later, Aristotle was proven false: they fall at the same rate, contrary to intuition and common sense!

The bottom line is that empirical evidence is essential if we are to judge the truth of any assertion. Otherwise we'd still think the sun orbits the earth or that the sky is a solid dome as it says in the Bible. If the facts indicate that the death penalty deters murder, then so be it. Even psychopaths go to great lengths to avoid getting caught.

I agree with you that the death penalty has other problems, such as dehumanizing those who administer it.

The Heliocentric Eccentric - Look, No Numbers

Ah yes. Galileo. Wasn't he the guy who hypothesised that the earth rotated around the sun? Based purely on observation, deduction, commonsense and intuition?

difficult concept

Perhaps Rob Wearne, those seven years of watching TV should be confined to endless repeats of "Dancing With The Stars" and a thus a suitable revenge would be enacted.

I still see enormous difficulties with your concept especially after watching my own TV and seeing a show on Dr Harold Shipman. How could you proportion his services out to the many thousand's of family victims left behind? Or the victims left behind by the perpetuator of the dreadful Port Arthur nightmare?

Nor would there really be any point in the state killing these madmen when they should be studied to see what drove them to commit these acts in the hope of seeing warning signals in other like-minded killers - if that were possible considering how crazy they must have been. Surely it's in everyone's interest to contract out our punishment out to the State but ensure the State discharges its responsibilites, which in your case means you probably want prison reform.

What proof does Gary S Becker have to conclude that "Most people, and murderers in particular, fear death"? What about true psychopaths who don't seem to fear or feel anything?

Michael,   I


I don’t see a difficulty in proportioning economic culpability – just think airline disaster although of course the payouts would be less.

Also in my opinion I don’t think it’s in society’s best interest to hand over these responsibilities or others to the state.

Take your example of Port Arthur and Bryant.  According to the psychiatrist that examined him, although determining 10 years ago that despite having the mental capacity of a not- too-bright seven year-old (50 point IQ) Bryant was cognisant enough to have a “guilty mind”, he has now changed his view and believes he was also mentally unbalanced…..

I thought it was the responsibility of the state to lock nutters like this up? But no – mental health and hospitals over the past thirty years have progressively been run down as the states have abrogated their responsibility for those most needy of assistance for whatever trendy vote buying gimmick for the 51% that want to rob the other 49% – democracy at work.

Also the state at the time had imposed firearms laws that hindered the ability of people to protect themselves by carrying their own protection.

If there is blame to be apportioned here then the majority of it should be apportioned to the state, then those that knew Bryant was a nutter and did nothing about it, and then Bryant himself.   

Lock everyone up, then, Rob?

Rob, you seem to be saying that it is the "state's" responsibility to preemptively lock up anyone with a below average IQ, just in case they ever commit a Port Arthur type crime. Sounds rather draconian to me.


What you propose would be unworkable and difficult to implement effectively Rob Wearne. It would require the law having to decide who has become the most "victimised" in a crime. Is it a family member and to what degree?

From my own experience - walking toward Harrods one Saturday and hearing an IRA  bomb, to later learn the friend I was on the way to meet was killed, it's very difficult to put into words the immense rage, feelings of impotence and loss that follows such an event. I cannot imagine how family members, or his fiancee felt. But some people survive terrible events and are not nearly as badly affected as others and that can apply to a close family member as well.

It is still far preferrable that society is treated as the "victim"and punishment accorded to an offendor on that basis. Victims should have access to all the government services and compensation on the basis that the state's duty of care has been broken.

I'm highly suspicious of "victim's rights" groups that begun as well meaning support groups for victims of crime and have now become lobby and political groups pushing agendas with many courting the media or being sought out for sensational comment often given in total ignorance of full facts.

Make them pay

Michael, what you call unworkable is worked out in the commercial law and insurance industries every day for victims of serious accidents etc.

When you say that society is treated as the victim what you are really saying is that the state should have the monopoly to determine the punishment of the offender.

In this I disagree – by illegally killing someone or some people then their rights should be forfeited to the families.

Some horribly awful task for the rest of their lives where they make a positive financial contribution to the victim's families would be appropriate. Not seven years watching TV and going to the gym at the expense of the taxpayer.

Execution paradox.

What's the point of executing someone if, according to religious thinking, they just escape to another life? Isn't this just an example of State-sanctioned gaol-breaking?

The death penalty leaves no room for error

Stuart, the point I am trying to make is that any judicial system is open to mistakes. The death penalty leaves no room for error. An innocent man can be released from jail; as yet we cannot bring back the dead.

The St Petersburg Times reports on 13 innocent men who came close to receiving the death penalty:

More than two years ago Illinois Gov. George Ryan imposed a moratorium on the death penalty and established a diverse commission to study its application. It was a humane response to the incontrovertible evidence that the state's system of imposing capital punishment was seriously broken. In a little more than a decade, 13 men had been released from death row after their innocence was established. One, Anthony Porter, came within 48 hours of being executed.

The death penalty devalues all human lives.

From a libertarian the

From a libertarian the perspective lacking in this debate is the rights of the victim(s).

I personally subscribe to the logic that those that take another life should forfeit their rights to the victims family.

If this means hard labour where the perpetrator is sold into some form of forced labour with monetary proceeds going back to the victims family then so be it.

However I don’t think this should mean putting death into the hands of the victims and certainly not the state.

Like Troy I think the accuracy of the justice system is far from perfect and especially in a state-based judicial monopoly where often the cases can become politicised for both the judges and especially the prosecutors whose seniority can depend on convictions rather than the truth.

As an aside it is interesting to note the race based statistics mentioned by some Webdiarists. However, these statistics are mostly meaningless without reference to some of the underlying causes of societal breakdown.

In this regard drug prohibition and the tough penalties from the war on drugs and the resultant super-normal profits from the drug trade must be one of the causes examined.

One can only speculate at how much property crime from desperate addicts and ethnic-based gang turf wars and killings over drug territories could be eliminated if these morality-based laws that are inimicable to natural rights were repealed.

warning economist on the loose

One really does have to be careful about letting economists out of their cages doesn't one? It's been called the dismal science but unfortunately it is also the one most clearly sundered from philosophy and interdisciplinary knowledge. At least on evidence of this piece.

To the extent that the use of punishment as a primary source of social control in the United States has been successful it's primarily been through the policy of zero tolerance. Even here the evidence is murky since it’s hard to separate its effects from other factors, such as rising prosperity, demographic shifts etc. Zero tolerance while sounding tough in terms of punishment actually relates to an increase in policing, either in police numbers or effectiveness or both. The danger of getting caught is the deterrent.

Just as disturbing as the actual ignorance on display, Becker's opinions appear based upon is his total lack of ethics. Or rather embracement of one very narrow and anti-Humanist and anti-Christian ethic. Working with a narrow utilitarian framework more suited to deciding whether to produce widget a or widget b he suggests that execution is worthwhile because of its deterrence factor, the message it sends to others. If so, public execution would be even better, and ritual disembowelling better still.

The underlying principle of Western democratic civilization is that human beings are ends in themselves, not means to an end. Under communism and fascism this was reversed, pursuit of the greater good reduced human life to another object subject to manipulation to create "desirable" social and economic outcomes. Killing to send a message to the rest was a major "policy tool" of such regimes. A similar mentality is found in the justifications for terrorism, by organisations, fanatics and states.

Since the collapse of communism (which provided a clear anti-democratic other) Western democracies have come under increasing pressure to erode civil liberties and reduce the value of human life. 911 provided great pretexts for those who would go down this road. This article looks like just another sick adjunct to this tendency.

dodgy logic

Gary S. Becker makes claims that cannot be substantiated one way or another. How can anyone possibly know whether "most mean fear death”? Why would anyone join an army when they know they are being trained to kill or be killed if this was such a strong emotion?

He uses US crime rates which are rubbery at best. Does he think because the US imprisons its citizens at a greater rate, often for things that would rate a mere fine or bond in Europe, than any other on the planet that this is seen as a success in keeping down crime?

And why is an exponent of the voodoo science called economics writing on capital punishment? Most economists should have been jailed along time ago for fraud.

Becker has unrealistic faith in the accuracy of fact finding

For the purposes of this discussion I am willing to assume that deterrence is the primary goal of the criminal justice system, although there are alternative viewpoints on that.

Becker admits that "My support for capital punishment would weaken greatly if the rate of killing innocent people were as large as that claimed by many." He has fallen into the trap that most people do of overestimating the ability of judicial systems to accurately determine the true facts when those facts are obscured. There is a general reluctance on the part of people everywhere to admit that there are some facts which can never be known. As a result people are willing to rely on anything that might justify an inference, even if that inference is only marginally more probable than improbable based on the evidence.

This is all a convoluted way of saying that courts get things wrong because people are predisposed to drawing conclusions in circumstances where it is unsafe to do so.

Recently significant numbers of death row inmates in the United States have had their convictions overturned because DNA evidence proved they were not the people who committed the crime. At the time of their convictions, DNA identification technology was not sufficiently developed to be used. Even though this technology is available now, it will not operate to exonerate the innocent in all cases, and cases where it does not so operate still involve the same chance of risk of wrongful conviction.

The rate with which US death row convictions are being overturned in this way has led one court to remark that it has radically shaken its faith in the fact-finding capabilities of the court system to the degree that it may never be safe to impose the death penalty.

The problem with the death penalty is that of finality - once it is imposed on an innocent person, even if the conviction is found to be wrong there is no way that anything can be done to mitigate the damage of the wrongful conviction.

Imposition of the death penalty on the grounds of deterrence faces another problem. When punishment is to be used to deter, it involves invoking a deterrence effect evaluation formula. Generally this works by factoring in the gain to the criminal from committing the crime (G), the penalty (P), and the probability of conviction (C), such that G < P * C. That is, deterrence theory requires that if the probability of being caught is 5%, then the penalty must be more than 20 times the value of the gain to the criminal from committing the crime. Probability in this case is as perceived by the criminal, and criminals tend to think it unlikely that they will get caught. Based on this, death may be an insufficient penalty for that kind of deterrence in many cases.

In fact death is not the worst penalty that can be imposed. Imprisonment with solitary confinement and sensory deprivation for the term of the criminal's natural life is a significantly greater penalty. There are some who argue that adding torture to this makes it worse, although the counter-argument is that torture provides stimulus that actually decreases the penalty.

If we have a penalty that is worse than death that is capable of mitigation in the event of the discovery of wrongful conviction, why should we even consider death as an option, even based on a policy of deterrence? There are alternative penalties that are superior for this purpose, and also superior at dealing with the significant countervailing risk that Becker identifies.

The real reason for invoking the death penalty is the one Becker denies - a desire to satisfy the primitive desire for revenge. Abolishing the death penalty is a prerequisite for a civilised justice system because it involves a greater understanding of deterrence than Becker possesses, and involves denying primitive desires a place in the determination of penalty. Abolishing the death penalty involves reason triumphing over animal nature, which in my view is the very thing that defines civilised conduct.

Reduced crime rates

Punishment as deterrence? I don't think so. According to American police sources the single biggest factor in the reduction has been the legalisation of abortion and the statistics are there to prove. (If ever they can.) As state by state legalised abortion over the years their figures fifteen years down the track all showed the same trend.

This fellow must know that.


Scott Dunmore. when I first came across the abortion/crime theory it was in Freakonomics by Levitt & Dubner. I think they may have been the first.

Another question

Graham Finn, thanks for the link, I wish I had more time to explore it more fully.

I thought this stuff had been put to bed years ago. It's no longer contentious (at least among intellectuals), which begs the question, what is this rubbish doing on Webdiary?

Let's all draw a deep breath

Malcolm Duncan both you and the learned economist are wrong. Let's try and be a bit objective about this. We all accept every day policy decisions that will end lives, and that will shorten lives. No surprise there. And, of course, many of those decisions are irreversible, even in case of error, e.g., refusal of a liver transplant on mistaken medical grounds. So the Callinan argument falls out the window in about 30 seconds. Most of us would not have shouted "look out!" if we saw a bus hurtling at Saddam Hussein. We are not anxious to preserve every life. And economists and sociologists are at least as entitled to comment on public policy as are lawyers. (Read Denning's views on the death penalty some time.)

The numbers/deterrence argument is a good one, if the figures were conclusive. But as the learned economist says, the figures are not conclusive. Deterrence is very hard to show. This is particularly the case for murder because many or perhaps most murders are crimes of passion, done (often in a domestic context) in a once only fit of rage. Nothing good about that, but such outbursts are by their nature hard to deter. The learned economist drops his guard a bit when he talks about "a career criminal who robs and kills a victim who led a decent life and left several children and a spouse behind". That is not the paradigm case of a murder. Most career criminals are too fly to knock people off, especially innocent people. It is inconvenient, it draws police and public attention, and killing people is repugnant even to most criminals. But what about a career criminal who, as in a recent case, kills a vicious murdering drug overlord? Does the calculus still work?

But even if the numbers did work, the most powerful argument against the death penalty is that it puts the power of death - deliberate, cold blooded death - and the technology of death in the hands of the state. This can never be a good thing to encourage.

There is, of course, another argument in favour of the death penalty. It does not really rely on deterrence. It is the argument that some crimes against humanity are so foul that the killing of the perpetrators has a powerful and salutary iconic value. Most of us would have wanted the death penalty, I imagine, for Hitler or Stalin. Would we not?

Let me make one more obvious point. I don't have the figures of crime rates in Europe and America, and I distrust the idea that there can be an easy equivalence. What counts as a crime in Europe might not in the US and vice versa. But I do understand that America locks up a lot more people than most other societies, and that it does so in conditions that can often be accurately described as vile. Even for minor crimes, in some cases.


My dear old colleague, if your comments become any more opaque, I'll be regretting not doing woodwork with the intellectually challenged woolclassers at school.

The deterrent comment is logically self-evident - it is a necessary consequence of the way language works.

I think Callinan's argument cogent.

Human behaviour is not reducible to fluxions.  The question is whether or not there is criminal culpability, if not, no murder.  That says nothing of deterrence.

Frankly, I would not have wanted the death penalty for Hitler or Stalin - I just would have shot them.  That is an instance of the legitimate right of the State to exit-mould its enemies in time of war.  We were never at war with the Soviet Union? - true but accidents do happen from time to time.  That's why we have spooks.

Thoroughly different argument in the instance of Nuremburg or the Japanese war criminals - sometimes one's actions can be so outside the ambit of reasonable human behaviour that one forfeits one's right to be treated as human.

I do not regard routine crimes in that class but there's a whole series of jurisprudential threads on that coming when I get the time.

Faith and Hope but the greatest of these is Charity

Now we have a professor of Sociology and Economics weighing in.  I tire of this drivel.  The argument against deterrence can be easily put: if the death penalty were an effective deterrent it would never be invoked.

The argument against the death penalty was (and I thought at the time somewhat surprisingly and) forcefully put by Callinan J at the Lawasia Conference last year.  You can all find it here.

Malcolm, deterrent here discussed., a case for killing terrorist

Thanks Malcolm for your link. Here is one I found particularly useful from the USA point of view.I recomend it to any interested in this.

What is also interesting is why the Professor would so risk his academic reputation by taking such a stand and basing it upon academic principles rather than just his personal opinion. Why now?

And to those who bray about lining up terrorists for execution, consider the terrorist trials in the past overseas that have guilty verdicts over turned years later like the IRA group, and consider please, here at home, the Ananda Marga group of four who were convicted of the deadly terrorist attack at the Hilton hotel, only to be found innoncent.

Where is the hue and cry for the real perperators of that? Imagine! A Sydney terrorist attack and all go back to sleep. Political based violence should be highly scrutinised and executing those allegedly concerned may just be protecting the real guilty. Nelson Mandela would be dead  30yrs ago.

I am against the death penalty for any crime, even vicious violent premediated/planned murder, just as I am aganst warmongering. They are equivalent to me.

It is nice that careful studies do not support the benefits of any of the above, although there is great  profit for a few to make from all.


Death by discrimination

Amnesty International reports, “Death by discrimination - the continuing role of race in capital cases.”

See here.

We simply cannot say we live in a country that offers equal justice to all Americans when racial disparities plague the system by which our society imposes the ultimate punishment." US Senator, January 2003(1)

African Americans account for 43 per cent of the USA’s current 3,700 death row inmates and about 34 per cent of prisoners executed since 1977.

Racial disparities can be seen throughout the criminal justice system in the USA. While African Americans make up 12 per cent of the country’s population, they accounted for 48 per cent of all inmates in state or federal prisons and local jails on 30 June 2002. On that day, over 12 per cent of black males between the ages of 25 and 34 were incarcerated compared to 1.6 per cent of white males in that age group.

Unless we have a perfect judicial system we should not allow capital punishment. Mistakes will be made and racial prejudice will always prevail.

"race" issues

John, the reason for such death penalty statistics is that although African Americans comprise about 12 percent of the US population, this "racial" group commits about 80 percent of violent crimes. I don't doubt that there are some racist judges here and there, but for the most part the disparity has to do with the differential crime rates, not with "race" per se. Of course one can argue that the long history of slavery and racism led to the "racial" disparity in violent crime rates, but the sentencing is not necessarily reflective of racism.

John - Could you please

John: Could you please give me a breakdown of the percentage of murders committed by black citizens in the states which have the death penalty? Because the death penalty is only imposed in some states, and most of these (from memory with an argument with Marilyn over an issue close to this one) have a higher percentage of black people to the total ratio of all citizens in those states. Therefore a ratio of murders to population in a true sense, rather than a skewed national figure would be created.

And perhaps you could do a comparison with the total numbers of murders in these states with a racial breakdown, and the difference between the different races of these murderers gaining the death penalty? And perhaps the type of murders involved?

Because all of these should shift the 12% of population to almost 50% of death row population back into a somewhat more balanced perspective. By a significant amount. Especially when you take into account the nature of the murders being committed - remember it is almost always only murder in the first degree is eligible for the death penalty - the maximum for the others usually being life imprisonment.

But then again, what are detail and fact compared to overreaching statements and poorly detailed statistics used in a biased matter?

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