Deterring murder: a reply.

• Author: Sunstein, Cass R.
• Position: Response to article by Carol Steiker, John Donohue, and Justin Wolfers in this issue, p. 751, 791

We are most grateful to John Donohue, Justin Wolfers, and Carol Steiker for their valuable and illuminating responses to our article. (1) Donohue and Wolfers explore empirical questions, (2) on which we have little to say. Steiker investigates the moral issues, (3) and here our Reply must be more extensive.

Donohue and Wolfers believe that, with respect to the death penalty, "existing evidence for deterrence is surprisingly fragile." (4) They attack the peer-reviewed empirical work of a number of social scientists, including Hashem Dezhbakhsh, Paul Rubin, Joanna Shepherd, H. Naci Mocan, R. Kaj Gittings, and Paul Zimmerman. (5) They highlight theoretical claims by Lawrence Katz, Steven Levitt, and Ellen Shustorovich, who emphasize the infrequency of capital punishment and who thus doubt the claim of deterrence. (6) (Interestingly, Katz, Levitt, and Shusterovich do find that prison deaths have massive effects in deterring murders and other crimes, (7) Most importantly, their own work, using existing data, suggests that deterrence has not been shown.

Donohue and Wolfers misunderstand the point of our article. Let us distinguish among three purposes for which one might discuss the recent deterrence evidence: (1) to argue that, in fact, capital punishment deters murder; (2) to argue that the evidence has reached a threshold of reliability such that policymakers should change laws now, adopting capital punishment; and (3) to argue that the evidence has reached a threshold of reliability, much lower than in (2), such that it is worthwhile to consider the moral implications of the evidence. We do not mean to take a stand on either (1) or (2). We do not know whether deterrence has been shown; and contrary to Donohue and Wolfers's suggestion, we do not insist "that it would be irresponsible for government to fail to act upon the studies." (8) Nor do we conclude that the evidence of deterrence has reached some threshold of reliability that permits or requires government action upon it right now. (9) Plainly, Donohue and Wolfers have a quarrel with other social scientists, but not with us--except, perhaps, insofar as we are willing to take the recent evidence as a motivation for rethinking the moral issues. (10)

Suppose that Donohue and Wolfers are fundamentally right and that their own analysis shows that current evidence of deterrence is weak. Even if that were true, we could certainly imagine a regime of capital punishment that would, in fact, deter homicides. It is worthwhile to ask how the moral issues should be assessed if deterrence could be established. In any case, one of our central goals is theoretical. We aim to use the area of capital punishment as a way of challenging the act/omission distinction in the context of government decisions. (11) Our hope is that this challenge is relevant to a wide range of issues, not merely capital punishment. In our view, regulation is pervaded by life-life tradeoffs, and criminal law is illuminatingly analyzed as a form of regulation.

Carol Steiker does not accept this latter claim, and hence she engages our arguments directly. (12) But she does not defend the act/omission distinction. For government, at least, she seems to agree that this distinction is unhelpful, at least outside the context of criminal justice. Even for criminal justice, she does not insist on the value of the act/omission distinction. (13) Nonetheless, she rejects our argument on three grounds. The first involves what she sees as the need to distinguish between purposeful and nonpurposeful acts. (14) The second points to considerations of justice that seem to raise serious doubts about capital punishment. (15) The third involves slippery slopes that, in her view, make our argument unacceptable. (16) We take up these claims in sequence.

Purposeful versus nonpurposeful action. Steiker notes that in the criminal law, it is entirely standard to distinguish between purposeful and nonpurposeful acts. Those who purposefully cause harm are punished more severely than those who are negligent or even reckless. Steiker believes that the same distinction, pointing to different degrees of mens rea, greatly matters when the government is the actor. A government that takes life is doing so purposefully, whereas a government that fails to protect life is acting negligently or at worst recklessly. (17) Steiker is puzzled that we seem to ignore this conventional-"quotidian" (18)--distinction. Because capital punishment involves the purposeful taking of life, and because the failure to impose capital punishment does not, Steiker believes that it is wrong to speak of life-life tradeoffs in this context. (19)

We shall argue that even though the distinction between purposeful and nonpurposeful actions is important for the purpose of criminal punishment, it is not important for the purpose of evaluating what governments should be doing. A government that negligently fails to prevent hurricane damage may be less blameworthy than a government that chooses to create hurricane damage, but governments that have failed to prevent hurricane damage had better start doing so. As a preliminary matter, two closely related points are important to underline: (1) where governments are concerned, the distinction between acts and omissions is both conceptually obscure and morally irrelevant; (20) and (2) governments do not have "intentions" or "purposes," at least not in the way that people do. (21) Steiker stipulates to the first point, (22) but she may not fully appreciate its force. In our view, the first point, properly appreciated, requires acceptance of the second point as well.

As for the first: Suppose that we have rejected the act/omission distinction for governments and that we accept the evidence of deterrence for purposes of argument. It follows that, where government chooses not to adopt a policy of capital punishment that would deter significant deaths, (23) government is itself acting with willful disregard of the resulting deaths. True, government does not know the precise identities of the victims, but that should be neither here nor there. A lifeguard who left her post, knowing to a practical certainty that a number of people would predictably drown as a result, would be a murderer, even if the identities of the victims were unknown ex ante. Steiker recognizes that, under the Model Penal Code and in most jurisdictions, conduct of this sort would itself constitute legal "murder." (24) Perhaps such conduct would not be murder in the first degree, depending upon the relevant criminal code and upon the factual details. But it is unclear why that legal difference is relevant and unclear why it should underwrite a wholesale objection to capital punishment at the level of policy evaluation. We return to this point shortly.

As for the second point: In the example above, we have treated government as a really big person, as does Steiker. It is worth underscoring, however, that the same structural features of government policymaking that render the act/omission distinction obscure, for government, also render the distinctions among various shadings of culpable intention obscure, for government. Steiker claims to accept, at least for the sake of argument, that the act/omission distinction fails for governments. But Steiker then uses unusual...