Bryan Caplan  

Can Psychology Save the Death Penalty?

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There's a striking passage in Freakonomics that echoes an argument I've occasionally made myself: Namely, that the death penalty as it is now practiced couldn't have much effect because it is so unlikely to actually be imposed.

[G]iven the rarity with which executions are carried out in this country and the long delays in doing so, no reasonable criminal should be deterred by the threat of execution. Even though capital punishment quadrupled within a decade, there were still only 478 executions in the entire United States during the 1990s. Any parent who has ever said to a recalcitrant child, “Okay, I’m going to count to ten and this time I’m really going to punish you,” knows the difference between deterrent and empty threat. New York State, for instance, has not as of this writing executed a single criminal since reinstituting its death penalty in 1995. Even among prisoners on death row, the annual execution rate is only 2 percent—compared with the 7 percent annual chance of dying faced by a member of the Black Gangster Disciple Nation crack gang. If life on death row is safer than life on the streets, it’s hard to believe that the fear of execution is a driving force in a criminal’s calculus.

For "reasonable criminals," this is a slam dunk argument. But how reasonable are criminals? Freakonomics is also famous for publicizing the finding that the typical drug dealer is earning a McDonald's wage. They've got a sort of rational choice explanation, but still, you've got to wonder.

More importantly, there's a specific reason to doubt the Levitt/Dubner argument: Availability bias. As Nobel prize-winner Daniel Kahneman argued with his legendary co-author Amos Tversky, people tend to over-estimate the probability of VIVID, MEMORABLE events. And what's more vivid and memorable than a big execution? I suspect that executions are to punishment as airplane crashes are to travel: Statistically rare events that people count all out of proportion to their objective probability.

The upshot is that the huge media circus that surrounds each execution is probably enhancing its deterrent effect. (For a more fleshed-out story, see Kuran and Sunstein's brilliant model of availability cascades). And since you need death penalty opponents to keep the circus alive, there's a good chance they're actually increasing the deterrent effect of the policy they oppose. Funny how things work out.


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COMMENTS (9 to date)
Ernest writes:

There's a striking passage in Freakonomics that echoes an argument I've occasionally made myself: Namely, that the death penalty as it is now practiced couldn't have much effect because it is so unlikely to actually be imposed.

The question is not, "Does the death penalty deter now?" but "Does a death penalty deter at all?"

Saying that a death penalty does not deter because there is no death penalty is like saying that the wheel does not increase productivity because it didn't increase productivity when it didn't exist.

Levit's argument is that the reductions in the crime rate that we have seen in the last decade can not plausibly attributed to the death penalty because it effectively did not exist, which is sensible. But this is not an argument against the effectiveness of frying murders.

For "reasonable criminals," this is a slam dunk argument. But how reasonable are criminals?

Criminals are reasonable enough, in most cases, to try and elude capture. And will often take measures to avoid detection ahead of time.

The question is not, "Will the death penalty eliminate murder" but, "Will murders be less prevalent with a death penalty than without?"

Try a though experiment. Impose the death penalty only on even numbered days. At the end of the year, when do you think most of the murders will have happened?

It is the burden of the abolishionist to explain why penalties, such as fines, deter, while the death penalty does not; why a $10,000 penalty is expected to deter more than a $1,000 penalty but the most extreme penalty does not.

And what's more vivid and memorable than a big execution?

Which raises the question: which method of execution is more dramatic? Injection? Hanging? Electrocution? Drawing and quartering? By being more savage at the execution stage, a criminal justice system could more afford to be humane at the trial and penalty stage.

Alan writes:

I've no doubt that, as Bryan argues, availability bias should moderate (though not eliminate) the argument in "Freakonomics". Equally, though, the widespread appetite for celebrity and attention satisfied by the media/legal circus surrounding application of the death penalty should moderate (though not eliminate) Bryan's argument. I've always thought that the assessed chance of being caught was much more important in deterrence than the nature of the ensuing penalty. There have, after all, always been offenders who, once caught, prefer death to a long sentence. With celebrity thrown in, the number is likely to increase. It seems to me a pretty open question whether capital punishment would be more or less frightening if it came with a news blackout. Dictators who can actually make this choice seem to go for a combination of show trials and silent disappearances in attempting to deter the "crimes" that matter to them.

Dezakin writes:

The argument for deterance in the death penalty allways struck me as hollow justification for the real purpose: retribution. The amount of deterance provided is dwarfed by potential abuses of the system and the question of whether its wise to empower the state to murder.

There just aren't reasonable murderers. Those that are willing to commit a capital offense I doubt bother to think on weather they'll be spending life in prison or face a needle.

In any case arguing about psychology of the death penalty on an economics log is a bit out of place; Weather the death penalty is cost effective is a different question. Certainly it can be if you remove several legal protections and appeals processes. Some are okay with that, and I'm not.

Mark Horn writes:

Of course people always pick the rational choice. That's exactly why lotteries are so rare and unpopular. The chance of winning is so remotely tiny that no one participates.

It's such a relief to know that we're all operating on a completely rational basis all of the time. Phew!
</sarcasm>

Roehl Briones writes:

What the? For choice, what matters is the margin. So though I run a 7% risk of dying from being a member of the Rap Gangsta Sputnik Bazooka, if I know on top of that I face an extra 1% chance per annum of official death, the latter may well figure in my criminalistic calculus.

Karl Smith writes:
There just aren't reasonable murderers. Those that are willing to commit a capital offense I doubt bother to think on weather they'll be spending life in prison or face a needle.

This is a noble sentiment but false. The law is a constraint. I have been constrained by it myself.

Now, it is probably the case that the actuall difference in cost between life in prison and death row is so small that there is likely to be an effect.

However, its not because criminals are not reasonable but because the cost difference is in fact not that great.

Suppose that everyone who was convicted of murder was immediately taken out back and shot. Also, suppose (unrealisticly) that this did not decrease a jury's willingness to convict. I think then you would see the death penalty have a significant effect.

liberty writes:

What about people considering killing someone who live in Texas or Tennessee? I'd say the chances are a lot higher there.

As for the drug dealers, why do you say "Freakonomics is also famous for publicizing the finding that the typical drug dealer is earning a McDonald's wage. They've got a sort of rational choice explanation, but still, you've got to wonder."?

Do you not beleive that claim? Its quite true. Most drug dealers barely make more than a pretty girl panhandling. They do it because they have the chance, its easy, they can dress and act as they wish, its not hard work like flipping burgers - and like those who buy lottery tickets, they *hope* to make more one day in the business.

If they are lucky and they move on up to the cociane and so forth, they might either die or hit it big.

Ajay writes:

"its not hard work like flipping burgers" - Please reexamine this statement.

Caplan, it seems you assume that death penatly has a deterrence effect. From what I've read (especially Jeffrey Fagan's article here) there is little evidence for such an effect. The article is worth reading, but it's probably best summend up in this quote: "Decades of research confirms that such efficiency in homicide detection and apprehension would be a more effective deterrent than poorly publicized and infrequent executions."

Whether it's children, or dogs, or adults we know that certainty and speed of apprehension has a strong deterrent effect, and that weaknesses in these areas can not be effectively compensated for by harsher punishments. If people don't believe that, they should get a dog or a child (no, not a child, on second thought).

It's intuitively reasonable, when you think about it. Assume for a moment that murderers can be modeled as a sort of economic agents trying to maximise their own happiness. If we do, it's clear that they are extremely short-range planners - even if penalties are "just" some years in prison! To affect their behaviour effectively, you would have to use penalties within hours of the crime, not years.

But it's perhaps a moot point anyway. In an earlier post you suggested that the order of preference should always be morality, prudence, pleasure. It's hard to see how killing people who are no longer a threat, and can not escape or fight back, could be moral.

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