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Capital Punishment Deters: Heritage Foundation

The Heritage Foundation is no longer the devil it once was on the Left. Recently, Heritage has come out strongly for reforming mandatory sentences, and against over-criminalization and over-federalization of law.  

I am sympathetic to the latter and skeptical to the former, though I know sentencing reform is backed by very good people and friends like John Malcolm and Paul Larkin at Heritage and Sen. Ted Cruz.  Of course it also has the backing of George Soros, the NACDL and the SEIU, which you'd think would scare off anyone to the right of Valerie Jarrett.

This prelude is necessary to equip my friends at Heritage to duck the brickbats headed their way to the effect that, "I always knew you were fascists after all"  -- brickbats sure to blacken the sky when Heritage reports that its scholar's extensive study shows: 

Based on data from all 50 states from 1978 to 1997, each state execution deters...

Of course deterring the murder of innocent people by executing stone cold guilty ones has never been a big priority with the Left, which has preoccupied itself instead peddling the flabbergastingly false story that blacks are in mortal danger from rampaging whites.  They might want to try again, though self-correction  -- or any other kind for that matter  --  doesn't wear well with the pious (when not snarky) Mark Oslers of the world.  

Still, for those who haven't had their brains fried on critical legal studies and other forms of Amerika Stinks theory, the Heritage Study results showing the death penalty's deterrent value will be of more than a little interest.


Bill, your link on the "flabbergastingly stupid...." doesn't work. And according to brilliant and high tech Samsung Galaxy S5, flabbergastingly isn't a word but in my opinion it should be.

Matt --

I was linking to an earlier entry, which I reproduce below:

The Single Biggest Lie

July 20, 2013 10:13 AM | Posted by Bill Otis | 3 Comments

As has become typical from our increasingly dishonest media, there are a large number of lies given currency in reporting any major story, and the Trayvon Martin story was certainly no exception. NBC got the ball rolling with its scandalous doctoring of the conversation between Zimmerman and the 911 dispatcher that made it seem that Zimmerman might be racist in his reaction to Martin (a claim no one made during the trial because there is no known basis for it). The press then continued to reproduce smiling, handsome pictures of a 13 year-old Martin and a fat, thuggish Zimmerman long after more neutral pictures became available.

The danger is that we will miss the forest for such flagrant trees. The forest -- the 900-pound gorilla of a lie behind the reporting of this case -- is the proposition that white-against-black malevolence, and white-against-black violence in particular, is the ugly, racist truth about America.

That proposition is designed to stoke white guilt, which, in a majority white country, is ultimately designed to undermine the moral confidence essential to enforcing our law.

The problem is that the proposition is a bald-faced lie.

Eric Holder has called on the country to have an honest dialogue about race, and famously chastised us for our cowardice in not doing so. But if an "honest dialogue" still means telling the truth, including inconvenient and uncomfortable ones, Mr. Holder should lead with this:

There is a relatively small problem with white-on-black murder in this country. There is more than ten times the problem with black-on-white murder. His Department's own statistics -- about which he has been entirely silent -- tell the tale. As one blogger has noted:

From http://www.fbi.gov/about-us/cjis/ucr/crime-in-the-u.s/2010/crime-in-the-u.s.-2010/tables/10shrtbl06.xls we see that in 2010, 447 whites were murdered by blacks, while 218 blacks were murdered by whites, for a total of 665 inter-racial murders.

Given that blacks are 12.6% of US population, and whites are 72.4% of US population, the population ratio is .174 to 1 black to white. If the interracial murder rates were the same for both, we would expect 115 out of the 665 murders to be murders of whites by blacks. But the number was 447, which is 388% of the expected rate by populations.

If that's a little hard to figure out, let me try to translate. About twice as many whites are murdered by blacks than blacks murdered by whites. But there are only about one-sixth the number of blacks to do the murdering. What that means is that, statistically, it's almost 12 times more likely that a black will murder a white than that a white will murder a black. And what that means is that the Trayvon Martin case is, far from being the Symbol of Violent White Racism Against Black Teenagers that it has been portrayed, more accurately seen as the rare exception. (And even that is counting the half-Hispanic Zimmerman as white, and his self-defense homicide as "murder," both of which I am doing to make every assumption in favor of the media's false narrative).

In other words, while this county does have a problem with interracial murder, it's not that whites are killing blacks. It's that blacks are killing whites.

I realize how unpleasant a thing that is to say (and, I suspect, a risky thing to say for an academic). But if we are to have the honest dialogue Mr. Holder says he wants, someone has to start.

Having started, let me say one other thing as well. The huge majority of murders are intra-racial not inter-racial. Thus, the other, also largely hushed-up problem in this country is the enormous number of black murder victims killed by other blacks. Again, while blacks are between 12 and 13 percent of the population, they account for almost half the murder victims.

In other words, there is a national disgrace lurking around the Trayvon Martin story, just nothing like the one the media and liberal politicians are peddling. The real disgrace is that we too often fail to deploy the ultimate punishment -- the death penalty -- when murder victims are black. And the way to start fixing that disgrace is, not to abolish justice for white victims, but to start giving it far more frequently to black ones.

When someone says "isn't a word," my usual response is to cite Lewis Carroll and come galumphing back.

FWIW, a prior post on the Muhlhausen article is here.


You may want to take the time to read the actual studies that Dr. David B. Muhlhausen cites in his commentary of the deterrent effects of the death penalty. Although saying he "cites" articles is a bit of an overstatement, since he does not actually provide the article's title and the name of the journal (or on some occasions even an author). Searching through Jstor and Google Scholar with the limited information provided I was able to further examine the research that his commentary (extensive study?) shows supporting the deterrent effects of the death penalty. While it is easy to simply pick research findings that provide "evidence" for an already established ideological viewpoint, there are those who are more concerned with the quality of the research than with the outcome, and who value the pursuit of knowledge more than supporting or rejecting ideological beliefs.

The studies that Dr. Muhlhausen credits are predominately done by economics scholars and therefore rely heavily on economics based models of rational actors. Whereas scholars in the field of sociology and criminology find this methodology to be flawed and misleading in its conclusions (see Radelet and Lacock, "Recent Developments: Do Executions Lower Homicide Rates?: The Views of Leading Criminologists," Journal of Criminal Law and Criminology (1973-) 99(2): 489-508).

Take for example the study by Paul R. Zimmerman, which provides the quote that "based on data from all 50 states from 1978 to 1997 ... each state execution deters an average of 14 murders annually" (Paul R. Zimmerman, 2004, "State Executions, Deterrence, and the Incidence of Murder," Journal of Applied Economics 7(1): 163-93). Zimmerman's model then assumes that state per-capita murders are determined according to a structural model of: MurderPerCapita = B1*Pr(a) + B2*Pr(c|a) + B3*Pr(e|c) + [control variables]. (this is a simplified version of his model that focuses on his key explanatory variables). The variables Pr(a), Pr(c|a), and Pr(e|c) are deterrence probabilities that "are to be regarded as proxies for the subjective (perceived) probabilities calculated by potential offenders in deciding whether to commit murder.

In Zimmerman's model a potential murderer, prior to committing a murder, thinks to himself "what is the probability that I will be arrested given my murder (Pr(a)), given that probability, what is the probability that I will be convicted if arrested (Pr(c|a)), and given that probability, what is the probability that I will be executed given my convicted (Pr(e|c)). That is one really forward thinking potential murderer in that he is has the actual knowledge of state data on arrests, convictions, and executions and is then able to determine the probability of all of those as it relates to him, in order, prior to deciding whether to kill someone. But, that is economic modeling founded in rational choice analysis where actors contain full knowledge and then act rationally based on that knowledge. This is one of the assumptions that sociologists have a problem with in economics based modeling of the death penalty's possible deterrent effects.

What is even more intriguing about Dr. Muhlhausen’s commentary is that he cites Zimmerman’s findings from the 2004 article, and even uses that quote of “each state execution deters an average of 14 murders annually,” but then fails to preface that claim with Zimmerman’s subsequent findings in 2006 (Paul R. Zimmerman, 2006, “Estimates of the Deterrent Effect of Alternative Execution Methods in the United States: 1978-2000,” American Journal of Economics & Sociology 65(4): 909-41). In that paper Zimmerman uses the same model used previously (with the same dataset, including updated years), but this time separates the different methods of execution to examine whether the deterrent effects are found equally among the methods. His conclusion in this analysis (again based on the same assumptions of the previous paper) is that “the empirical estimates suggest that the deterrent effect of capital punishment is driven primarily by executions conducted by electrocution. None of the other four methods of execution (lethal injection, gas chamber asphyxiation, hanging, and/or firing squad are found.” So, if one is to accept Zimmerman’s methodology, then prior to getting excited about seeing research that provides evidence backing your ideology, the person should know that the deterrent effects found in the 2004 paper are only found in executions conducted by electrocution. Dr. Muhlhausen’s “extensive study” (your words) conveniently leaves this follow-up study out and does not provide the caveat. This is understandable though given that the caveat might diminish the credibility of the argument that he, the Heritage Foundation, and yourself are trying to make, that “Capital Punishment Works” and “Here’s the Proof that Capital Punishment Works.”

I imagine that finding research that appears to provide backing for what you believe in ideologically can be exhilarating, as it allows you to say “look, science shows that me and my team are right,” but science - especially social science - is not nearly that plain and simple. Additionally, it appears that even a learned person of scientific research like Dr. Muhlhausen is so overwhelmed by his beliefs that he either intentionally or unintentionally left out the research that either diminishes or refutes the claim that he wants to put forward. Repeating his claim without actually investigating the foundation for it simply perpetuates the cycle of being uninformed. Is the death penalty a deterrent to crime? That’s a great question, and it clearly requires complicated methods of research to try and establish a correlation between the two, and preferably a causal connection. Information from economics research and criminology research shows conflicting answers at this time, and thus more research should be undertaken in hopes of gaining a better understanding. But, I acknowledge that that answer is not very exciting or comforting to someone with a strong ideological view of the death penalty…and even questioning the research and the motives of the Heritage Foundation’s commentary probably just makes me a “brickbat.”


Sean --

It has been thought since the dawn of civilization that punishment deters crime. The severity of the punishment is not the only thing, and perhaps not even the main thing, that deters it; swiftness and certainty may count for more. But to say that they count for more is hardly to say that harshness counts for nothing.

Is it your view that the death penalty has no deterrent effect whatever?

Sean --

I would note in addition that deterrence, whatever one might make of it, is not the principal reason supporting the death penalty. Two more important ones, in my view, are just punishment and certain incapacitation.

The death penalty was imposed for the crime described in the link below. I wonder if you could explain why it was unjust under the circumstances.


The studies that Dr. Muhlhausen credits are predominately done by economics scholars and therefore rely heavily on economics based models of rational actors. Whereas scholars in the field of sociology and criminology find this methodology to be flawed and misleading in its conclusions...

And the economists have an equally low opinion of the sociologists' methods.

The dispute between the two is reminiscent of the old psychology wars from decades ago. The Freudians dismissed the behaviorists as devoid of theory, and the behavorists dismissed the Freudians as more of a cult than a science, missing the empirical validation that is the essence of science.

The sociology departments of academia today are so poisoned by Political Correctness that if their consensus has any value at all it is only as a contrarian indicator. Academia generally is left wing, but the sociology departments are the little flashing lights out on the left wing tip.

Kent --

To supplement your observation, I would ask Sean this:

Sean, you said, "I acknowledge that [an agnostic] answer [on deterrence] is not very exciting or comforting to someone with a strong ideological view of the death penalty…and even questioning the research and the motives of the Heritage Foundation’s commentary probably just makes me a 'brickbat'."

Do you question the research and motives of think tanks or academics whose deterrence studies show little or no deterrent effect?

If so, could you post the cite?

If not, why not? Is possible influence-by-motive the sole property of retentionists? What's the argument for that?

P.S. I don't think you're a brickbat, Sean. I also don't think you're a brickhead (which might be the word you're looking for). To the contrary, it's clear that you're a bright man and a nuanced thinker.

And that, I submit, is part of the problem. I hang out these days in academia, at quite a good national law school. My experience is that, when confronted with a fundamental moral issue, my very bright colleagues tend to scamper off into what they view -- plausibly in a sense -- to be The Deep Forest of Statistical Refinement.

Refinement of that kind is a good thing when understood as a part of a part of the debate. It is to focus on the larger and, I think we'd agree, more publicly decisive parts that I asked you about whether you think the death penalty is a just sentence in the Dylan Groene case. I will be eager to learn from your answer.

Gentlemen, thank you for your responses. I began writing a response to try and address your questions, but I am not that good at brevity and it has ballooned into 2,000 words. I will attempt to edit it down and post when finished.

Decency evolves: The National Research Council of the National Academy of Sciences commissioned an exhaustive study designed to resolve just this question. What was that panel's conclusion?:


"CONCLUSION AND RECOMMENDATION: The committee concludes that research to date on the effect of capital punishment on homicide is not informative about whether capital punishment decreases, increases, or has no effect on homicide rates. Therefore, the committee recommends that these studies not be used to inform deliberations requiring judgments about the effect of the death penalty on homicide. Consequently, claims that research demonstrates that capital punishment decreases or increases the homicide rate by a specified amount or has no effect on the homicide rate should not influence policy judgments about capital punishment."

Decencyevolves --

Kent already answered you on a prior thread.


Now let me ask some of the questions pending.

Is it your view that the death penalty has no deterrent effect, ever? In other words, that no one has been deterred from murder by it?

Aren't there other and more important features of the death penalty that justify it irrespective of deterrence vel non?

Is the death penalty an unjust or disproportionate punishment for the extended sex/torture/murder of nine year-old Dylan Groene in front of his eight year-old sister?

Notice: I did not succeed at trimming my response down, and I leave it to you to decide whether it is worth your time to read what I have written. I enjoy putting my thoughts into words and writing in general serves as great practice (and is a lost art), so I will not be offended should you choose not to read what I have written.

I will try and address your questions as two separate groups, the first being my discussion of research on the deterrent effects of the death penalty and statistical research in general; the second being Bill’s more down-to-earth question regarding application of the death penalty specific to the case of Dylan Groene.

First, I should clarify the intention of my original post. While I specifically picked at the Paul Zimmerman article and its rational choice assumptions, it should be noted that I am actually a fan of rational choice modeling. I believe that its strengths lie in its theoretical potential in explaining (in theory) causal mechanisms. However, I am also aware of its limitations, which lie in its assumptions that: (1) people possess complete knowledge; (2) that they are able to calculate complex probabilities in their head; (3) they are rational actors who after completing these probability calculations act accordingly based on some notion of utility; (4) they are able to factor in a considerable degree of future costs and benefits; (5) and that emotion does not play a role in this decision-making. The concept of emotion is foreign to most rational choice theorists, as emotions simply aren’t rational (see Donald Green and Ian Shapiro, 1996, “Pathologies of Rational Choice Theory: A Critique of Applications in Political Science,” for an in-depth critique of rational choice modeling). Picking at these assumptions in Zimmerman’s model, which had a rather extensive assumption of a potential murderer’s ability to calculate probabilities, was fairly easy. But, in a theoretical and more abstract sense I do like that type of modeling…it is just hard to apply to actual human beings, whose behavior is annoyingly hard to predict and determine. This may have detracted from what it was that I was actually trying to critique, which was Dr. Muhlhausen’s interpretation and commentary on these articles as evidence that “The Death Penalty Works,” and on Bill’s subsequent post stating “Here’s the Proof That Capital Punishment Works.” These are simply not accurate statements, especially given the evidence that is cited and the context in which they are cited. The answer, regardless the claim, is never so easy as to say “look, the evidence supports this claim” (see i.e. global warming), and the affiliation of the person saying it makes it even more disingenuous. To see a researcher with the initials Ph.D. who is paid by a think tank with a clear ideological position use the credibility inherent in his educational background to (in my view) purposely oversimplify the research so that it shows the desired outcome of his employer is counter to the entire idea of objective research, and it is a slap in the face to those who have earned a Ph.D., value objective analysis, and attempt to objectively portray that analysis. While I focused on the research on death penalty deterrence, a field that I am not knowledgeable in, the main target of my criticism was Dr. Muhlhausen.

This brings to me to Kent’s point regarding my ability to be objective towards research on both sides of a political or policy issue. In full disclosure I will admit that this was my first look at death penalty deterrence research, so I cannot post articles that claim there is no effect. However, I assure you that I would examine any such research findings with the same level of scrutiny that I view all research. That is, I would view the theory, the literature review, the methodology used (conceptualization/operationalization of variables, statistical modeling decisions), the statistical significance of the resulting coefficients, and the interpretation of those results. Every theoretical approach has strengths and weaknesses, whether behavioralists, rational choice, institutionalism, interpretivism, or psychological (this is more related to the social sciences). I would especially be critical of any Ph.D. possessing researcher employed by a liberal think tank who wrote a commentary piece indicating “The Death Penalty Doesn’t Work,” and any blogger that then repeated this claim. The broader theme here is that I hold a view that those trained and knowledgeable in academic research have a responsibility to use their expertise and knowledge (and the inherent credibility they receive because of their education) to be above politics and promote objective commentary, or at least avoid the perception that they are making some claim of “proof” regarding any subject. Additionally, these people know through their education the importance of citations so that others can easily find the source material and analyze it for themselves. Dr. Muhlhausen did not provide citation to any of the studies that he claimed provided proof, and some of them he didn’t even give an author’s name. The only reason I can imagine for this is that he assumed the audience he was speaking to would just believe whatever he said, and no one would actually want to investigate the source material to make their own decisions. Again, I think this is a disgraceful use of one’s academic credentials, regardless of the ideological view they are trying to promote. So for example @Decencyevolves presents a claim from a highly methodology driven book on the deterrent effects of the death penalty, and he attempts to use the recommendations of the writers to support his claim without giving any information on the actual methodological critiques of the authors and the changes that they believe would provide for better research. My initial assumption is that @Decencyevolves has not actually read the book that he cites, although I could be wrong. Either way the recommendations and conclusion of the committee means nothing to me without actually reading the analysis of the individual authors and determining for myself whether the conclusion is warranted given their methodology.

Moving on to Bill’s question “is it your view that the death penalty has no deterrent effect whatever” my answer, which should be obvious, is no, that is not my view. The reason is that you ask your question in an absolutist manner, and I cannot imagine a situation in which I would agree that something exists in an absolute sense. If you asked me “do you believe all school busses are yellow” I would so no, because you would only need to find one school bus that is not yellow to prove me wrong, and I cannot know the color of ever school bus. So, in order to show that the death penalty has a deterrent effect in your absolutist question, you would simply need to find one individual person that has been deterred by the death penalty and you would be correct. Wording is important and I would imagine as a legally trained person you are just as aware as I am that you avoid answering questions in an absolute manner, as the original questioner is likely eagerly waiting for you to mess up and answer yes so that they can tear your argument down. Clearly, research on any social phenomenon can only answer the questions in an “on average, holding everything else constant” capacity. There will always be exceptions (outliers) to any findings, and these outliers exist because we are human beings. Additionally, I believe you are correct in that deterrence is not the only purpose of the death penalty and punishment in general. Theories on the purpose of punishment include rehabilitation, general deterrence, incapacitation, and retribution, just to name a few. Joshua Dressler’s criminal law textbook has an entire section devoted to the philosophies of sentencing and punishment in general. You are correct to point out that even if it would be shown that the death penalty does not have a deterrent effect, there are other legitimate purposes for it that should be considered from a policy standpoint.

Lastly, I will try and address your question on the sentencing of Dylan Groene, who according to the article you linked to was sentenced to death by a federal jury. I read the article and I will openly admit that my heart hurt as I read through it. I imagined myself in the position of the father and in the position of the jurors. I was filled with sadness and grief, and I cannot imagine the level of pain that the actual actors felt during that trial and the presentation of the evidence. My heart is not so wrapped-up in reason that I am not able to feel the pain and loss of another person, and a life being taken at the hands of another is something that fills me with sadness. But, I cannot simply turn that emotion off and maybe I have a deficient amount of anger and resentment because I would also experience sadness and heartbreak if I had to watch a video of Dylan Groene’s life being taken away. I am aware of what he did and I am aware of the pain he caused to others, but the emotional response that you attempted to trigger in me by reading that article works both ways, and I feel those same emotions when I read an article about a person being executed. Additionally, it hurts my heart even more to see a life being taken and to know that others are so filled with anger and resentment towards that person that they eagerly applaud the taking of the life. With that said, I am also aware that these responses are emotional and that people experience emotions and passions in different ways. Allowing my reason to again take control, it would be unfair of me to assume that anyone else should feel what I feel when it comes to emotional responses given a specific object. If I were on that jury and could not overcome my emotions I would not be able to perform the role of juror and view the facts and evidence objectively; although can any human being actually do that in a criminal case involving such extreme violence? (that is more of a rhetorical question)

Herein lies the place where my thinking splits on whether the death sentence of Groene was just. There is the extremely personal belief of justice that is based on my notions of morality, a morality that is bound up in my attitudes, values, and beliefs, which are themselves a result of my genes (which determine the chemical make-up of my being) and my life experiences. These fundamental values do not change quickly, however they have changed over the long-term of my life based on the personal experiences I have had (my environment). I do not assume others share the same morality that I do, and I do not expect them to as everyone is unique in their genes/environment. So, whether I think Groene’s sentence was just or unjust from that personal moral standpoint is not really of huge importance in its abstract sense. Since I am not king (thankfully) what matters is how I and the rest of the political community define what is just. Since the Supreme Court has said that the death penalty in itself is not a violation of the Constitution, and the federal government has chosen to utilize this as a punishment, then the jury’s decision is just if it adheres to procedural and substantive rules. I noticed on the site you linked to that there was an article stating that the 9th Circuit has reversed and remanded the sentence for the purpose of allowing a hearing on Groene’s mental capacity. If that is correct, then the decision of the 9th circuit is as ‘just’ as the jury’s decision was in that they are both in accord with the law governing death penalty sentences.

More broadly speaking, since states may choose whether they utilize the death penalty or not, I and everyone else are able to vote for those representatives that reflect their moral beliefs on what is just in an attempt to turn that moral position into the law of the state. In an imperfect society, as long as the death penalty is deemed constitutional, this seems to be a good compromise that allows voters to determine whether their state government will utilize it as a punishment method. Herein lies the inherent beauty of federalism and the more general principle of popular sovereignty. Given the inherent problems in an expanded society with various political views, Madison did a pretty good job at establishing a system that has worked for over 220 years.


Sean --

Contrary to what you imply, those supporting the death penalty do not do so out of sheer emotion, while shunting aside reason. That is simply not so. It also demeans retentionists as atavists at heart.

I appreciate your acknowledgement that the death penalty has deterred at least some murder. What that means is that you agree that the DP has a deterrent effect; the only question is how much.

Finally, I was unable to deduce from your discussion whether you think the murderer of nine year-old Dylan Groene should be executed.

Do you?

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