Here is a paper that might be interest, “Killing in Good Conscience: Comments on Sunstein’s and Vermeule’s Lesser Evil Argument for Capital Punishment and Other Human Rights Violations”:
In a recent article, Cass Sunstein and Adrian Vermeule argue that capital punishment is morally required if it will deter significantly more killings than it inflicts. They claim that the state’s duty is to minimize murders, and that recent deterrence research shows that state executions, even if deemed murders themselves, can do so. If these findings are true, they argue, the state is morally obligated to undertake such “life-life tradeoffs.” The logic of Sunstein and Vermeule’s argument justifies not only state executions, but any state-perpetrated injustice that promises to reduce the incidence of similar injustices overall. Recently such lesser evil arguments have been invoked to justify state torture, detention without trial, and warrantless wiretapping. In this article, I identify problems that are common to all of these arguments. My aim is to demonstrate that, however valid the lesser evil approach may be in some domains, it fails when invoked to defend state violations of the right to life and other fundamental human rights.
The paper is responding to this piece, “Is Capital Punishment Morally Required? The Relevance of Life-Life Trade-offs”:
Recent evidence suggests that capital punishment may have a significant deterrent effect, preventing as many as eighteen or more murders for each execution. This evidence greatly unsettles moral objections to the death penalty, because it suggests that a refusal to impose that penalty condemns numerous innocent people to death. Capital punishment thus presents a life-life tradeoff, and a serious commitment to the sanctity of human life may well compel, rather than forbid, that form of punishment. Moral objections to the death penalty frequently depend on a distinction between acts and omissions, but that distinction is misleading in this context, because government is a special kind of moral agent. The familiar problems with capital punishment – potential error, irreversibility, arbitrariness, and racial skew – do not argue in favor of abolition, because the world of homicide suffers from those same problems in even more acute form. The widespread failure to appreciate the life-life tradeoffs involved in capital punishment may depend on cognitive processes that fail to treat “statistical lives” with the seriousness that they deserve.
Here, thanks to Doug Berman, is a post about the Sunstein / Vermuele paper, with links to lots of comments and responses. And, here is Dan Markel’s long post on the paper, from about a year ago. Light reading for a Friday in spring . . .
Posted by Rick Garnett on May 19, 2006 at 03:52 PM
Comments
The John Donohue/Justin Wolfers paper, “Uses and Abuses of Empirical Evidence in the Death Penalty Debate” (which is references by the Doug Berman post to which you link) pretty well demolishes the S/V statement, “Recent evidence suggests that capital punishment may have a significant deterrent effect, preventing as many as eighteen or more murders for each execution.”
Donohue & Wolfers not only show that this “recent evidence” is flawed, but pretty well show how those “studies” intentionally manipulated the evidence. That’s not a charge to throw around lightly, I know — but Donohue and Wolfers basically show how those inaccurate findings of deterrence could have resulted only from very selective data analysis; i.e., the inaccurate findings of deterrence pretty much couldn’t have resulted from unlucky “false positive” findings. They convinced me thoroughly enough that I feel quite strongly that no cite to these sham studies should go unrebutted; I think we can’t condemn this kind of thing strongly enough.
Posted by: Scott Moss | May 19, 2006 8:53:28 PM
Hi Marty. I agree with you, definitely, about the Steiker paper. Actually, it’s discussed, and linked to, in the Berman post to which I linked. Thanks.
Posted by: Rick Garnett | May 19, 2006 5:00:20 PM
Rick: A very powerful rebuttal to Sunstein/Vermeule has been published by Carol Steiker. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=859384. I’m biased, both because Carol is a good friend and because of my views on the issue, but I think you’ll find it very worthwhile.
Posted by: Marty Lederman | May 19, 2006 4:29:38 PM