The ethics and empirics of capital punishment.

Editors' Note

The articles in this Issue of the Stanford Law Review constitute a four-part series on the ethics and empirics of capital punishment. In the first article, Cass Sunstein and Adrian Vermeule advance an ethical argument in favor of capital punishment, motivated by recent empirical studies which suggest that capital punishment has a strong deterrent effect. (1) Because the act/omission distinction breaks down when the government is the actor and because the death penalty's deterrent effect creates a life-life tradeoff, Professors Sunstein and Vermeule argue that capital punishment should be morally required.

In the second article in this series, Carol Steiker responds to the ethical arguments, arguing that Sunstein and Vermeule's new reasons to believe that capital punishment is morally required are not persuasive. (2) First, government executions constitute a distinctive moral wrong (i.e., purposeful as opposed to nonpurposeful killing) and a distinctive kind of injustice (i.e., unjustified punishment). Second, acceptance of "threshold" deontology does not require a commitment to capital punishment even if substantial deterrence is proven. She further explains how their argument morally requires other brutal or disproportionate punishments and why even consequentialists should not be convinced by Sunstein and Vermeule's argument.

In the third article, John Donohue and Justin Wolfers discuss the uses and abuses of empirical data in the capital punishment debate generally. (3) By reexamining the data from studies cited in Sunstein and Vermeule's article, Professors Donohue and Wolfers cast doubt on the studies' findings and claim that they cannot be relied on when determining capital punishment policy. They further argue that policymakers should be skeptical of any new studies of the deterrent effect of the death penalty unless they have been fully vetted and probed for weaknesses in a much more...