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A Whopper Right Out of the Gate by DP Reform Opponents

Yesterday I predicted that the opposition to the initiative to fix California's death penalty would be dishonest.  I did not expect to be proved right so quickly.

The opposition's press release says, "Due to its arbitrary application and other factors, the death penalty does not achieve any of its supposed crime deterring benefits according to a 2012 National Academy of Sciences study."  Borrowing the WaPo Fact Checker's scale, that's Four Pinocchios, i.e., a whopper.

Putting aside for now the controversy over the NAS committee's composition, methods, and conclusions, let's just look at the objective fact of what that report says.  Does it say what the opponents' press release claims it says?  No, it most certainly does not.

There is a huge difference between "the truth or falsity of Proposition X has not been proved either way" and "Proposition X has been disproved."  The opponents claim that the report says that the deterrent effect has been disproved.  Here is what it actually says (emphasis added):

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.
In other words, the committee's position is that deterrence has been neither proved nor disproved.

Citing this report for the argument that the death penalty has been affirmatively shown not to deter is either flat-out lying or astonishingly ignorant.  The Supreme Court held in the classic case of New York Times v. Sullivan that "actual malice" in publishing false statements means either knowing falsehood or reckless disregard of the truth.  The opponents are unquestionably guilty of actual malice in this falsehood.
Are the opponents simply ignorant of the difference between "not proved" and "disproved"?  The bulk of their release quotes former Los Angeles District Attorney Gil Garcetti, who is part of their campaign.  O.J. Simpson walked away from a double murder charge on his watch.  That means that the jury found he had not been proved guilty beyond a reasonable doubt.  It certainly does not mean he was proved innocent, and Garcetti certainly knows the difference.

Back to the deterrence point itself, there is good reason not to accept the NAS committee report as the definitive word.

It is a basic principle of human behavior that incentives matter.  Raise the cost of doing anything, and fewer people will do it.  That is the basis of much of psychology and most of economics.  Those who contend that capital punishment is somehow an exception to this basic principle have the burden of proof, and they have not carried it.

Common sense tells us that an effective death penalty will have a deterrent effect and will save lives, and there is a substantial body of research to back that up.  See CJLF's summary of the research from 1996 through 2010 here.  The stacked committee of the NAS may not think this evidence is sufficient to consider in making policy, but that is simply the opinion of the committee members, and many others disagree.  The authors of the studies stand by their work, and several of them have refuted the criticisms.

Capital punishment for the worst murderers is independently justified as just punishment.  The likely deterrent effect is an additional reason to carry out these judgments and to keep the sanction available in the future.

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