There’s No Evidence The Death Penalty Deters Crime

There is no evidence that the Capital Punishment works.

Of all the arguments in favor of capital punishment, the one that seems to have the most staying power is the idea that it is a deterrent to future crime in that the possibility of facing death makes it less likely that people will commit crimes that will or could lead to death. The idea that executing murderers has been considered gospel among death penalty advocates for decades now, and it does seem to have some elements of logic to support it. After all, why would any rational person risk their own death by committing an act that could lead to their own death? Of course, a criminal act that is likely to end up in the death of a victim or victims already poses the danger that the assailant will be killed outright or mortally wounded, so one wonders why the risk of death ten years down the road would be any more of a deterrent than the risk of death at that very moment. Nonetheless, the idea that the death penalty is a deterrent remains the argument that death penalty advocates rely upon the most, even in the face of the problem of wrongful conviction of innocent men.

It turns out, though, that there’s absolutely no evidence that the death penalty deters crime:

In recent years, five U.S. states have eliminated capital punishment, and several others are currently reconsidering their policies. Advocates of the death penalty insist the moves will lead to more murders. They point to a number of studies conducted over the past couple of decades that purport to find clear evidence supporting their view. Experts happily serve up unequivocal congressional testimony, and feed their analyses to lobby groups.

The reality, unsatisfying and inconvenient as it may be, is that we simply don’t know how capital punishment affects the homicide rate. That’s the conclusion of the National Academy of Sciences, which typically plays the role of impartial arbiter in these social-science debates. Their expert panel recently concluded that existing research “is not informative about whether capital punishment decreases, increases, or has no effect on homicide rates,” and that such studies “should not influence policy judgments about capital punishment.”

The panel’s conclusions largely echo those from research conducted by one of us (Justin Wolfers) jointly with Stanford University law professor John Donohue. That research replicated and probed the leading studies, finding that even minor changes in how the analyses were conducted dramatically altered the conclusions. As a result, there’s “not just ‘reasonable doubt’ about whether there is any deterrent effect of the death penalty, but profound uncertainty,” the authors wrote. Indeed, “we remain unsure even of whether” the effects “are positive or negative.”

The main reason that a conclusion cannot be reached here is because there’s simply no way to correlate the homicide rate, which has fluctuated many times over the years, to a single factor like whether or not a particular state has the death penalty. This makes completely sense, actually. The number of factors that could potentially influence the homicide rate itself are too numerous to list, and they could be societal, cultural, or individual in nature. Additionally, even in states that have been aggressive in the use of the death penalty like Texas and Virginia, the factors that determine whether or not a case will be considered death penalty eligible can vary from jurisdiction to jurisdiction, and convictions can vary depending on a wide variety of factors ranging from the makeup of the jury to the competence of a particular Defense Attorney. Trying to factor all of those variable, many of which are entirely subjective, in order to answer the question “Does the death penalty deter crime?” would seem to be a next-to-impossible task even for the best team of social scientists.

Moreover, as the authors go on to point out, even if we could come up with an answer to this question, that still doesn’t end the discussion:

Even if one accepts the possibility that the threat of death deters some would-be murderers, that doesn’t mean it’s the best way to do so. Capital punishment diverts hundreds of millions of dollars from other criminal-justice interventions that may have done more to reduce homicide rates. This important point — there’s an opportunity cost to spending on capital punishment — often gets overlooked

Amid all the uncertainty, the data do allow one conclusion that the National Academy should have emphasized more strongly: The death penalty isn’t the dominant factor driving the fluctuations in the U.S. homicide rate. If it were, the homicide rate in the U.S. wouldn’t have moved in lockstep with that of Canada, even as the two countries experimented with different death-penalty regimes (see chart). Likewise, homicide rates tend to rise and fall roughly in unison across states, even as some – – such as Texas — ramp up executions, and others have chosen not to adopt the practice (see chart).

Overall, the panel’s conclusions are a welcome corrective to a debate in which politically expedient, yet imperfect, findings have attracted greater attention than those rare moments of humility when we social scientists admit what we don’t know. Now that a widely respected authority has established the uncertainty about the deterrent effects of the death penalty, it’s time for advocates on both sides to recognize that their beliefs are the product of faith, not data.

Paul Waldman comments that the discrediting of the deterrence argument leaves us with only one real question when it comes to capital punishment:

[I]n the end, we’re left with a fundamental moral divide, one we should explore. Should the state be killing people who are convicted of crimes? Does the fact that justice can be served in one way by an execution mean that it should be served in that way, as opposed to other ways (like life in prison, a punishment which is arguably far more harsh). What kind of values are expressed by executions, and are those the values we as a society want to promote? In every other advanced democracy, they’ve answered “no”

I suppose if you’re a person who subscribes to the “eye for an eye” school of justice, then it probably seems as though this is a very easy to question to answer; take a life, give up your own. There’s just one problem with that. What does such a moral code say in the face of evidence that the death penalty is by its very nature applied in an arbitrary manner that is likely more influenced by the size of one’s pocketbook, and the color of one’s skin, than the question of whether or not a particular crime deserves the ultimate punishment? What does it say in the face of cases like three death penalty cases from the State of Texas alone — Cameron Todd WillinghamClaude Jones, and Carlos DeLuna — where it is now quite apparent that men were executed for crimes they didn’t commit. Or how about Cory Maye, who spent ten years on Mississippi’sdeath row for a capital murder conviction tainted by racism, improper testimony from a corrupt Medical Examiner, and a case of mistaken identity by police conducting a no-knock drug raid? How about the numerous cases where eyewitness testimony put men in jail for decades, only to have DNA evidence later prove that they were innocent?

I used to support the death penalty at one time, although it was admittedly reluctant support rather than the kind of thing you see from people who hang out outside a state prison the night of an execution to cheer someone’s death. Over time, though, I’ve come to the conclusion that the should simply shouldn’t have the right to take a life, even in the case of someone who has committed a horrible, violent crime. With the advent of DNA technology and the numerous instances of innocent men who have spent time on prison and death row, combined with my own observations of the criminal justice system as an attorney, have made it clear that our judicial system is simply far too arbitrary and imperfect to be trusted to make the decision between life and death. Life in prison without the possibility of parole is hardly the luxurious life that death penalty advocates seem to think it is, and at least if we learn years later that prosecutors got a case wrong, we won’t just be saying “Sorry” to a grave stone. All of this is especially true when a defendant facing a death sentence is forced to accept court-appointed counsel that lacks both the experience and the resources that a private-hired attorney would. The question of whether you live or die shouldn’t depend on whether or not you’re rich enough to hire Johnnie Cochran and the rest of the O.J. Simpson “Dream Team”, but, far too often, it does.

If the death penalty doesn’t deter crime, if we cannot eliminate the arbitrary nature of it’s application, and if the possibility of mistake is far too great, then there’s no justification for keeping it.

FILED UNDER: Crime, Law and the Courts, US Politics, ,
Doug Mataconis
About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010. Before joining OTB, he wrote at Below The BeltwayThe Liberty Papers, and United Liberty Follow Doug on Twitter | Facebook

Comments

  1. Russ says:

    tl;dr

    I’m perfectly fine with the death penalty as punishment for the most heinous of crimes, regardless of whether or not it deters others.

  2. Franklin says:

    As am I, as long as there’s no possibility of a mistake. But since it turns out there always is a possibility of mistake …

  3. Gustopher says:

    If we randomly selected a group of people in some easily discovered way — say all of those with even social security numbers — and only sought the death penalty against the accused if they were in that set, then in about 10 years we would have a statistically meaningful correlation, and could answer this question once and for all.

    Given that road blocks checking random cars for drunk drivers has passed supreme court muster, this might as well.

  4. Tsar Nicholas says:

    Well, this all assumes the primary rationale for the death penalty is deterrence and that capital punishment doesn’t deter crime. The latter is not indicated, one way or the other, even by the very studies which are designed to determine that question. The former is not necessarily the case. Capital punishment is the ultimate form of incapacitation. Corpses are guaranteed not to have recidivism rates. There also is the retribution factor. That’s been present throughout nearly all recorded human history.

    Regarding LWOP, nobody suggests it’s a life of luxury. At least nobody who’s sentient. Many will suggest, however, quite seriously, that it’s more of a cruel and inhuman punishment than capital punishment. Sending a 20 year old to rot in some dank cell for upwards of 60 or more years doesn’t seem all that egalitarian, does it? That it’s at the public’s expense only adds injury to insult.

    Concerning the innocent man factor, the answer is better death penalty lawyers and more comprehensive clemency procedures, not doing away with a state’s Constitutional prerogative to define its own criminal laws.

    Rather than having federal taxpayers subsidize the likes of journalism degrees for airheaded malcontents, museums in wealthy enclaves, employment killing wokplace investigations, and the spotted owl, how about spending that money instead on pro bono death penalty clinics and clemency reviews? The same woudl hold true, conceptually, for various state tax programs. To me that’s a better alternative than having Uncle Fed dictate state law issues to the individual states, or even worse to having unelected jurists dictating legislative issues to elected legislators.

  5. ernieyeball says:

    Some citizens think that executed prisoners not only pay for their crime when they are killed by the State. Apparently there is an afterlife of eternal pain and suffering waiting for the convicted. Of course there is no evidence for this either. They are just dead and vengeance belongs to the living.

  6. Kinky Beats says:

    I want to be firm in my belief that the death penalty should be legal for the most heinous crimes in society. I’m also a firm believer in the government being inefficient, corrupt, and prone to errors.

    I have to reconcile my belief in the legitimacy of the death penalty with how I view our government. I really can’t. Therefore, though I believe it’s legitimate, I am against it because of the many factors that inevitably put innocent people on death row.

  7. Ron Beasley says:

    Prosecutors here in Oregon rarely ask for the death penalty because it simply costs too much money.

  8. michael reynolds says:

    I don’t have a problem in general with telling certain individuals that the human race is prepared to go on without them.

    But not so long as there is any doubt as to guilt. There will always be doubt. So the death penalty cannot be justified, no matter how satisfying it is to see some child-killer or woman-killer die.

    The solution is clearly life without parole combined with vastly improved legal defense for indigent defendants.

  9. Scott says:

    I don’t really care whether capital punishment deters crime. I’ve come to be believe that if just one person was executed by mistake, then that is one too many. After that, all arguments to me are pointless. I know that this is absolutist but some things just are.

    On a side note, why do so many prosecutors fight like hell to prevent new evidence from being shown. It is quite puzzling to me. It is almost an ego issue.

  10. JKB says:

    Well, the problem seems to be that the execution is isolated from the crime. If you kill, get convicted then are promptly executed, the whole relationship is retained in the public mind.

    Now, the disparity in defense counsel and the proven miscarriages of justice, seems to argue against a speedy execution.

    And we don’t employ the death penalty where it would do the most good for deterring future crime, namely against pedophiles and serial rapists. If we put them down after their second or more victim, we could seriously cut into the crime.

    We should also acknowledge that life without parole is a wealthy nation’s luxury. If the person isn’t to return to society, then keeping them up for the rest of their days, in a hell hole or simple blockhouse, is only a viable solution as long as there is extra cash for such luxuries. Otherwise, those deemed a threat to society should face an quick death. We may return to this if the bubble discussed yesterday bursts.

  11. Rob in CT says:

    @michael reynolds:

    This.

    I don’t have a philosophical objection to executing the worst of the worst – it removes them from society. No chance of them getting out and doing it again.

    But our system gets things wrong, and execution is final. So no.

    We should also acknowledge that life without parole is a wealthy nation’s luxury

    I think there is definitely something to this. Our prisons aren’t cheap.

  12. Scott says:

    @Rob in CT: So we should tolerate mistakes to keep costs down? It is all a cost-benefit analysis despite actual people’s lives at stake. Not acceptable. Like I said, I’m an absolutist on this subject.

  13. Racehorse says:

    Prisoners who are executed can no longer possibly escape from prison to kill again – there is your deterrence.

  14. legion says:

    I firmly support the existence of a death penalty, not for its deterrence, but simply from the philosophical view that there are some crimes so heinous that we, as a society, must demand the ultimate penalty for them. The problem, of course, lies in the implementation of that penalty – that is something that must _constantly_ be evaluated to ensure fairness and impartiality, and it’s something this country has never been good at.

    That said, Doug – how do you reconcile your position on this with your position on Stand your Ground laws, which basically push the ability to administer the death penalty down to individual citizens?

  15. legion,

    The SYG laws merely reinforce the natural right of every individual to defend themselves. Completely different issue.

  16. george says:

    I’ve no moral problem with the death penalty, just a practical one – the possibility of a mistake.

    I find it curious that many (mainly on the right) who think the gov’t is inefficient and untrustworthy, still support the death penalty. I’m not sure how they reconciliate believing that, while being willing to give the gov’t the biggest power of all – the right to kill its own citizens despite a definitely non-zero chance of error.

    Unless they’re taking Bismarck’s line that its better that ten innocent men be killed, rather than letting one guilty man free? That is, they’re saying its both inevitable and okay to kill a few innocents? Though that seems even harder to reconcilate with the idea of small gov’t (Bismarck was more consistent, he was for big gov’t, run by himself of course).

  17. Scott O. says:

    @JKB: You seem to have the mistaken belief that it costs less to execute a person than to keep them in prison for life. We could make it cost less but then inevitably we would have even more mistakes than we have now.

  18. Scott O. says:

    @legion:

    I firmly support the existence of a death penalty, not for its deterrence, but simply from the philosophical view that there are some crimes so heinous that we, as a society, must demand the ultimate penalty for them.

    Why not burning at the stake then? Wouldn’t that be closer to the ultimate penalty?

  19. Nikki says:

    @Scott:

    On a side note, why do so many prosecutors fight like hell to prevent new evidence from being shown. It is quite puzzling to me. It is almost an ego issue.

    It is an ego issue. No one likes to have their wins turned into losses, no matter how dire the stakes.

  20. Just Me says:

    I think the death penalty can be a just punishment for certain crimes, I am just not convinced it is always a fair punishment. I am perfectly content with the idea of having no death penalty as long as life imprisonment is n the table.

    I have never been convinced it is a deterrent. I suspect most criminal punishments tend to deter only those who generally wouldn’t commit those crimes anyway. I think most peope prone to criminal acts have convinced themselves they aren’t getting caught.

  21. WR says:

    @Doug Mataconis: And the SYG laws end the whole problem of the death penalty. If you’re arrested for a capital crime in Florida, all you have to do is say you felt threatened and they don’t prosecute.

  22. WR,

    That is, with all respect, a ridiculously exaggerated description of the state of the law and of reality. Merely claiming one felt threatened isn’t going to help at all if the facts don’t support your claim, after all. You may not know this, but not every murder case goes down the way the Zimmerman/Martin confrontation did.

  23. mattb says:

    Doug, thank you for your continued thoughtful writing on this subject. I truly appreciate your curation of material and your excellent analysis on this (and a number of other legal issues).

    @Scott O.: Thank you for beating me to the point that trying death penalty cases almost always cost the state more than life sentences. Th entire meme that its cheaper to kill them is flat out wrong (unless someone wants to argue that more protections should be removed from a system that is already all too good at executing people who did not commit the crime they were accused of).

  24. mattb says:

    @Nikki:

    It is an ego issue. No one likes to have their wins turned into losses, no matter how dire the stakes.

    It’s partially ego. Sometimes its out of a belief that they have the right person and that individual needs to go away for good. An sometimes its out of personal ambition — its extremely hard to advance in either the DA’s office or become a local or federal judge without demonstrating one’s self to be “tough on crime.”

    The fact is — despite what one sees on TV — the deck is always stacked in favor of the prosecution and the state. After the state then comes the rich (those who can afford top notch representation). The sooner we admit these two things, the better. Justice is neither blind, nor equally distributed. And that should be one of the first reasons for abolishing the death penalty.

  25. Rob in CT says:

    @Scott:

    No, we should not.

    I already said I’m anti-DP. The money doesn’t change that for me. But I think JKB has a point about this being a bit of a rich country’s issue.

    I’d tackle the expense from another direction, personally – legalizing most if not all of the drug trade.

    @mattb:

    The entire meme that its cheaper to kill them is flat out wrong (unless someone wants to argue that more protections should be removed from a system that is already all too good at executing people who did not commit the crime they were accused of).

    Ah, but in my experience the folks who talk like that do, in fact, argue that. See, it’s only more expensive because those librul softies let them have all those appeals and stuff.

    The thing one has to remember is just how bloodthirsty your average Joe & Jane are.

  26. mattb says:

    @Doug Mataconis:

    The SYG laws merely reinforce the natural right of every individual to defend themselves.

    They should reinforce that right. But when you look at how openly they are worded (especially in Flordia) and the way the current law has been interpreted by the courts, judges (since SYG seems to allow judges to do a surprising level of “fact finding”) and juries, I think it’s difficult to argue that they are working as intended.

    As I have written multiple times here, hopefully one good thing that will come out of the Zimmerman/Martin tragedy is the fact that Rick Scott called for a panel to review the wording of the law.

  27. legion says:

    @Doug Mataconis: Then, philosophically speaking, how is the death penalty anything other than the state’s expression of a right to self-defense?

    In the previous thread, I never meant to argue that SYG laws in general are a bad idea – my complaint is that every single attempt at an SYG law I’ve yet seen put into effect is so poorly put together that it actually makes society less safe. Likewise, while I am in favor of the existence of the death penalty, the implementation of that penalty must be tightly controlled and subject to scrutiny every single time it is used, lest it too become a threat to society.

    And since I’m here,
    @Scott O.:

    Why not burning at the stake then? Wouldn’t that be closer to the ultimate penalty?

    Because it is slow, tortuous, and inhumane. We can argue about whether or not a death sentence constitutes “justice”. But if someone commits a crime worthy of death, they should be executed as simply and cleanly as possible; to demand that they suffer in the process is no kind of justice – it’s simply sadism.

  28. Franklin says:

    @Tsar Nicholas: Your response is good – it has brought up a point which I have briefly considered but hadn’t really seen anybody discuss before:

    Many will suggest, however, quite seriously, that it’s more of a cruel and inhuman punishment than capital punishment. Sending a 20 year old to rot in some dank cell for upwards of 60 or more years doesn’t seem all that egalitarian, does it?

    To me, this draws similarities to discussions of assisted suicide and/or euthanasia. Sometimes being dead is indeed better than suffering. But I don’t know if that’s the case for innocent convicts – would you rather die knowing that everybody thinks you’re guilty, or live with the hope that someday you’ll be exonerated (and in some cases, your hope actually comes true)?

    That it’s at the public’s expense only adds injury to insult.

    This got brought up last time we discussed the death penalty, and nobody responded to me: you’re aware that executing someone ends up costing significantly more than just putting them in prison for decades? And all that additional cost goes to everybody’s favorite professional – the beloved lawyer.

    And why is that? It’s because of appeal after appeal. But you claim all we need is better defense … which as far as I can tell is only going to make the cost of execution go up even more!

    So in my opinion, your public expense argument is actually well in favor of LWOP.

  29. mattb says:

    @Doug Mataconis:

    The SYG laws merely reinforce the natural right of every individual to defend themselves.

    At the risk of a thread hijack… Doug, I don’t think I’ve ever seen you lay out an argument as to why the elimination of the “duty to retreat” (which, at it’s core, SYG does) is a good thing from a policy or legal perspective.

    To put it a different way, what problem with existing self defense laws does SYG solve?

    Perhaps this could be the subject as a future post as I’d really like to see you spell out your rational — especially if you included citations as you do here.

  30. Franklin says:

    @JKB: I should have read more posts. I see that you all are under the mistaken assumption that execution is cheap. See Scott O’s post and my other post that elaborates on the point.

  31. mattb says:

    @legion:

    how is the death penalty anything other than the state’s expression of a right to self-defense?

    The simplest answer is timing.

    Self defense has a very limited window of opportunity. It has to occur in the moment. Even at it’s most broad interpretation, SYG does not allow me to escape the situation, retrieve a weapon, return and open fire (even if that takes place within minutes of the incident). And yes, even Florida has rejected this idea in a few cases.

    The state — with the exception of first responders — operates in a time frame that more or less eliminates the possibility of self defense. Instead state action is about retaliation, punishment, and (more than occasionally) revenge.

  32. Graham says:

    I believe that there are people out there who deserve to die for their heinous crimes, but I have trouble accepting that any of us (or all of us, depending on your perspective) have the moral authority to kill them, outside of immediate self defense.

    On a practical level, the fact that mistakes have been and continue to be made in death penalty convictions leads me to find the process monstrous and abhorrent.

    If you believe that a democratic state represents the will of its citizens, then a person executed for a crime they didn’t commit makes all of us a murderer.

  33. legion says:

    @mattb: Okay, now _that’s_ an intriguing response. I’m gonna have to think about that one… My initial reaction is to lean back on the precept of the state monopoly on violence… As you say, first responders (specifically law enforcement) have the responsibility and training (and attendant legal protections) to use lethal force in the heat of the moment. But I’m not sure I buy the moral equality of an individual citizen using SYG/self-defense and the state using the death penalty (yes, I know that kind of takes out my own previous point to Doug, but I’m thinking through this on-the-fly here…), though there’s probably an equivalence between self-defense and a cop using lethal force.

    But again, citizens simply don’t have the kind of training or mindset to reliably discern the difference between a very tense moment and a true “life or death” situation… That’s why poorly-written SYG laws are so damaging; they literally allow people to get away with murder, often requiring far less justification than even a cop who shot a perp would have to come up with.

    I can’t think of any situation that would allow a private citizen to plan out someone else’s death (euthanasia laws notwithstanding). The question then becomes: is there a situation where the state might be able to claim that right? That’s what we’re really debating here. I think you’re never going to get (at least in current society) to a point where one person can decide, coldly, and without legal repercussion, that another person has to die. I think what it boils down to is that the state _can_ make a call like that – but _only_ under the proper circumstances, where the reasoning (i.e., the law) is clear and the decision is debated openly and the evidence public (i.e., in a court of law by a jury of peers). But I’m definitely going to think more deeply on this concept. Well done, sir.

  34. Drew says:

    Call me crazy, but dead people can’t commit another crime.

    It’s a joke, people. Relax, a joke.

  35. al-Ameda says:

    I’ve alway felt that the death penalty was not about deference, but about retribution. It’s about the type of justice society prefers to mete out for a capital crime. I prefer the imposition of a sentence of life without parole, but that is not the preference of a majority of people in many states.

  36. IloiloKano says:

    1) The death penalty is not designed to be a deterrent. It’s designed to be a penalty. That’s why it’s called the death PENALTY.
    2) No evidence death penalty deters crime? Those who receive the death penalty don’t commit any more crimes… EVER.
    3) Innocent people get convicted? A greater number get killed by released murderers. I’ll take my chances.
    4) Don’t be such a moron!

  37. @mattb:

    Because when my life is being threatened by another person, why should I be the one who has the duty to retreat? Again, this is a legal codification of a natural right as far as I am concerned.

  38. Franklin says:

    @IloiloKano: Wow! Great arguments, especially the last one!

    /sarcasm off
    //seriously, you don’t see the difference between the state executing an innocent person vs. a random crime?

  39. michael reynolds says:

    @legion:

    But I’m definitely going to think more deeply on this concept.

    May I just say that with that line you won the thread in my opinion. It is rare to have anyone respond to a debate by actually considering the other point of view. Regardless of the merits of this particular issue, you’ve set a good example. You appear to be more interested in getting it right than in proving yourself already right. Imagine how much more we’d accomplish if everyone had that attitude.

  40. george says:

    @IloiloKano:

    3) Innocent people get convicted? A greater number get killed by released murderers. I’ll take my chances.

    What was Ben Franklin’s quote? Those who would trade liberty for safety will end up with neither? Other than cowardice, I don’t see any rational for your preference.

    It’s easier to protect yourself from random murderer’s than it is to protect yourself from the state. Lot’s of dictatorships (of the proletariot and otherwise) made the streets safe to walk – amazing what you can do if you take away people’s rights (and killing an innocent is about as extreme a right as you can grant a state).

  41. Graham says:

    @IloiloKano:

    Serious question: What if you are the one who is wrongly sentenced to death, would you accept that to live in this safe society?

  42. Ebenezer Arvigenius says:

    @mattb:

    To put it a different way, what problem with existing self defense laws does SYG solve?

    I’ll butt in on this. SYG laws are less a function of practicality and more one of abstract notions of justice.

    Generally, law aims at minimizing the cost of social deviant behaviour. By that standard, SYG is normally a bad bet since it will increase the overall societal cost (confrontations create damages which are a waste of resources regardless of to whom they are allocated. Funds spent on the treatment of a criminal are just as spent as those spent on the treatment of the victim).

    However, law also has society-stabalizing functions. One of the requirements of this is for laws to be seen as “just” or at least “reasonable”.

    There is a widespread aversion for people to be deferential to criminals as long as they are able to protect themselves.

    Philosophically, the reason can be traced back to the fact that the attacked person has a “double indemnity” for his actions. He is, on the one hand, defending himself as under “normal” self defence rules. At the same time, by preventing a successful violation of the law he also acts as a kind of quasi-policeman, defending “the law” as an abstract concept.

    While normal self-defence would limit ones actions to those necessary to end the threat to oneself and those actions would be restricted to those actions that would end the threat with minimum externalities (see above), this additional function (upholding the law) authorizes all actions that are necessary for crime repression and thus also allow an active defence that prevents the crime from happening without regard for the relative weight of the endangered rights.

    Hope this was halfway understandable :D.

  43. mattb says:

    @Ebenezer Arvigenius: It was and very thoughtful… need to process it a bit more before I can respond, though from a social philosophy side, it rings true.

    @legion: Thanks for the off the cuff response.

    there’s probably an equivalence between self-defense and a cop using lethal force.

    That was my point in the issue of timing. As soon as you move beyond the immediate incident, whether it’s an citizen or a state, we move from self defense in-the-moment action (being in a Heideggerian sense) to premeditated action (thinking… being outside the moment). While both might reach the same result, the later category can never be in the moment. It’s either before (preemptive) or after (retributive).

    Look forward to your additional thoughts on this.

  44. mattb says:

    @Doug Mataconis:

    Because when my life is being threatened by another person, why should I be the one who has the duty to retreat? Again, this is a legal codification of a natural right as far as I am concerned.

    But if your life is being directly threatened, even under Duty to Retreat laws, you are allowed to do everything necessary to reach a point of retreat.

    I am completely down with the concept of a natural right to defend one’s self. Like I said, I teach self defense.

    That said, I think there is a general misunderstanding of existing duty to retreat laws. Duty to retreat laws, broadly speaking, allow a victim in the midst of an attack to do anything necessary to enable them to retreat. And that includes the use of deadly force. I should also note that you are still able to escalate the situation (sucker punch) the attacker under Duty to Retreat if you can make the argument you were preempting an attack.

    There are three sorts of self defense situations – “random” criminal, acquainted, and escalated fights.

    The first, that most people think of, are criminal/sociopath/psychopath encounters, which are typically thought of as random. In all of these cases, if one chooses to defend themselves after the situation is initiated, they are well within their rights regardless of the duty to retreat, provided that once they have control of the situation, they retreat.

    The second sort of self defense situation is an attack on an individual by someone they know. This is sadly, statistically speaking, them most common type of self defense situation (encompassing domestic abuse, sexual abuse, and most rapes). Again, the victim is allowed to do anything necessary to escape the situation (i.e. retreat).

    In both of these scenarios, if the victim continues to press the situation after reaching a point of domination — i.e. after incapacitating the attacker continue to curb job him or her until dead — then they have failed in their duty to retreat. This is a fuzzy standard as mental state effects the ability to understand whether or not you have incapacitated the other person. Still, there needs to be boundaries.

    So in these two situations, I cannot see how SYG provides any other protections than DTR.

    Onto the third type of self defense situation where I think SYG get’s very problematic very fast… escalated fights. This is the class you bump into somebody who is having a bad day and a verbal confrontation starts. From a SYG perspective, you have no legal requirement to deescalate or remove yourself from that situation.

    In fact, I would argue that it gives you a defacto right to escalate that situation (and we have seen that in a number of cases in Florida). There is no reason (as its being interpreted) to exit that confrontation. And so, in the case of say, Zimmerman and Martin, once on confronted the other, the other had every right to continue the confrontation. And we end up with a fight. And that fight then escalated into the use of deadly force.

    Again, I have no issue with the philosophic underpinnings of SYG, but I think it’s an excellent case of why direct translations of philosophy tend to make for bad policy. And there are a number of cases from Florida that I think back up this position.

    If anyone can come up with multiple cases where Duty to Retreat ended up failing someone engaged in legitimate self defense, I’d be interested in seeing them. But until I see a preponderance of evidence that there is something fundamentally wrong with DTR, I have a hard time supporting SYG as written.

  45. mattb says:

    @mattb: I should also note that I am specifically discussing self defense laws and Duty to Retreat as implemented in New York state and some of the surrounding states. Your mileage may vary depending upon location.

  46. grumpy realist says:

    @mattb: It seems to me that any mother with a pair of kids would have come up with something better than the Stand Your Ground laws.

    Likely kid interaction:
    Jimmy makes a face at Johnny.
    Johnny pokes Jimmy.
    Jimmy slaps Johnny.
    Johnny takes a swing at Jimmy
    Jimmy takes an object and hits Johnny and….

    We know. God knows, we know….

    That’s why there’s a Duty to Retreat. It’s a duty to try to de-escalate the confrontation. Sheesh, don’t any legislators have any experience of raising kids?

  47. legion says:

    @michael reynolds: Thanks. Probably the thing i like most about this place is that I can consistently come here and exercise my brain – or just snark out, if I feel so inclined – without having to sift through a billion idiots. This is far and away the best commenter community I’ve ever come across. Unfortunately, I have to go out of town for a few days, but I always look forward to coming back & seeing what’s up on the topic of the day…

  48. mannning says:

    Despite the philosophical analyses presented here, I remain convinced that the death penalty is necessary and justified, and is a good deterrant to murder in most cases (but not all!). I do agree that the justice system is flawed in some murder cases, and that the system should be fixed somehow–a fix that, not being a lawyer, I cannot propose. The cost arguments are not appropriate in my opinion, since they are both expensive propositions: 60 years of living costs in jail versus, say, 25 years of living and retrial or appeal costs.

    Proof of false convictions supported by DNA evidence is a good result, but I suggest that we are gradually catching up with the backlog of such false convictions, and are now using DNA evidence ever closer to real time to exonerate or convict suspects. If so, we should see a significant reduction in false convictions of this kind going forward. A reduction of false executions to zero is most probably not possible, so those of us that still believe in the death penalty must reckon with this imperfect result, and help work to reach that zero mark.

    A convicted murderer enclosed in a cell for 23 of 24 hours and isolated from the prison population is still able to live life in his conscious mind, to think, to dream, to plot, to hate, to love, to court women, and to fantisize; a life of the conscious mind that his victim no longer has. Why should the murderer have that opportunity?

  49. mannning says:

    On Duty to Retreat (DTR) Laws.

    My situation as a octogenerian would not permit me to handle an attacker physically. I either must submit to his will, or I must use deadly force of some kind to deter or stop the attack. I cannot run very far either, because of my emphysema. I often carry a 9mm automatic when out at night, and I do know how to use it with considerable accuracy. (At my last outing at the local range, I managed to place 49 out of 50 rapid-fire rounds in the black at 75 yards. It was one dead target.)

    So, should I submit or should I try to pull out my weapon and shoot? If the circumstances permit me, I would elect to pull out the weapon and shoot. Otherwise, I must submit and suffer whatever the consequences may be, which could mean my death. So I will use deadly force to stop an attacker if I can. Does DTR enter into this situation? It seems clear that SYG does.

  50. mattb says:

    @mannning:

    Despite the philosophical analyses presented here, I remain convinced that the death penalty is necessary and justified, and is a good deterrant to murder in most cases (but not all!).

    Fine, but you are sidestepping all of the actual hard FACT which means that you are making that decision based on your belief/feeling and nothing else. Which is ok, but you need to cop to the fact that it is an emotional position, not a rational one.

  51. mattb says:

    @mannning:

    My situation as a octogenerian would not permit me to handle an attacker physically. I either must submit to his will, or I must use deadly force of some kind to deter or stop the attack.

    Again, if you are in a position where due to your physcial limitations you cannot retreat, DUTY TO RETREAT DOES NOT APPLY. How hard is this to comprehend. You have already stated that you are incapible of retreat.

    So, should I submit or should I try to pull out my weapon and shoot? If the circumstances permit me, I would elect to pull out the weapon and shoot. Otherwise, I must submit and suffer whatever the consequences may be, which could mean my death.

    If you feel you need to use deadly force then you should use it. But you are culpable, morally and legally, for everything that bullet does. And if it turns out that in the eyes of the community the use of deadly force was unwarrented and you kill the attacker, you will probably have a problem. Likewise if you spray and pray and wound bystanders, you will probably have a problem.

    In both those cases it shouldn’t matter whether or not you are in a SYG or a DTR state.

    Again, you’ve articulated exactly the sort of case where DTR does not apply. BTW, this is akin to the same argument that some have used to explain why Zimmerman isn’t even SYG to begin with (i.e. there was no location he could retreat to from on the ground). I personally don’t buy into this defense, in part because it ignores everything that led up to him being in that position, but that’s for another post.

  52. mannning says:

    @mattb:

    On DP:

    Ok, I cop to the fact that I articulated a personal opinion. Which is exactly what I wrote in my original post, since I could not and did not cite any facts to support what I felt to be true. Why take such a position? Because I looked inward to my thinking on the subject and concluded that the death penalty does indeed inhibit me from committing murder. It is burned into my mind that if I do shoot someone and kill them, I will pay for it with my life, unless there are extinuating circumstances such as self defense. I love life and therefore will avoid such a threat to life if at all possible. I suggest that many if not most people have the exact same inner reaction tthat I do, and hence the preventive nature of the DP does actually act to deter murder to a extent. Obviously, that murder is prohibited by the Commandments sets the stage in my mind to accept the prohibition as reenforced by the DP law and its actual executions.

    On DTR:

    The community is not the law. I would expect the law to either exonerate me or convict me, not the community. Yes, there would be other kinds of problems with hotheads that reject the DTR or SYG argument out of hand for their own perceptions of right and wrong.

    Just because I am over 80 does not necessarily mean that I couldn’t perform some sort of clever physical defensive maneuver that wins the opportunity to retreat–however slowly. So my friend tells me who is an expert in martial arts, and teaches it for police departments statewide.
    I assume, however, that I would not be expected to know such techniques by prosecutors, which I don’t. The point being that perhaps I should learn something of these methods if I want to try to avoid using my 9mm defense.

  53. mattb says:

    @mannning: My longer reply got eaten, here’s the short version.

    At 80 years old, it make no sense for you to start learning clever physical defensive maneuvers. Period. Ignore what that friend tells you.

    Also, at 80, unless you live or regularly visit high crime areas or have abusive or alcoholic relatives and friends, the chances of you being in a physical self defense situation are incredibly rare. I’d be more concerned about stuff like heart disease.

    So by all means carry a gun. And if you were forced to use it I can’t imagine you getting too many problems if it remotely looked like a self defense situation.

    That said, remember that if it’s just about getting robbed, without any serious threat of physical violence, handing over the wallet isn’t a bad option. I realize that might seem like you are letting the bad guy win, but you need to ask if taking a “stand” is more important than putting your continued enjoyment of life at risk (either though harm that might come to you or through incarceration if something went terribly wrong).

    As for training in self defense or the martial arts, I of course encourage it if it’s something you want to do. But if you are doing it solely out of fear about being attacked… honestly there are better things you can do with your time.

  54. mannning says:

    @mattb:

    Thanks for the reply. For most of the past 20 years I have held the opinion that it was just too late for me to take up any form of martial arts. More recently, however, it appealed to me as a good way to exercise, with a possible side benefit of better chances of survival. My friend concurs with this assessment, and promises to show me his techniques scaled to my current situation. This by no means will stop me from carrying as well. Two arrows in my quiver are better than one. There is a lot of violent crime in the general neighborhood where I live, perhaps less today than when we moved here, but still present, especially late at night, which I usually can avoid, but not always.

    As you mentioned, I had much rather hand over my very replaceable wallet and watch than engage the criminal, so long as I think it will not result in further harm to me or my wife. That is the core problem: the sadistic criminals here seem to delight in roughing up and then shooting their victims after they rob them. Most of the street crimes are apparently done by teams of two or three black men, who suddenly pile out of a car to surround their victims, rob and have their way with them, or to assault and rape young women who happen to be on their way home late. Two women were raped and killed on the diagonally opposite corner of the block from my home last year.

    We heard such an encounter taking place late one night just across the street, but were too late to prevent the three of them from killing a young man by bashing his head in, and then jumping into their car and roaring off. The man lived just long enough to tell us what had happened. They were never caught, either, to my knowledge.

    There is no way that I could use MA against two or three men successfully, and it is quite problematic whether I could haul out and use my 9mm to stop them all, either, if it were a surprise attack at close quarters. So I tend to stay in after 10 or 11 pm, as does my wife, or I take extra precautions before leaving the car to enter my home.

  55. mattb says:

    @mannning: I am truly sorry to hear that you neighborhood has become so dangerous. From what you write, I totally understand why you would want to be armed.
    Couple quick thoughts:

    For most of the past 20 years I have held the opinion that it was just too late for me to take up any form of martial arts. More recently, however, it appealed to me as a good way to exercise, with a possible side benefit of better chances of survival.

    You’re never too old (generally speaking) to start martial arts. But the key thing is that you should do it because it’s something you want to do — not because it’s something you feel that you must do. It sounds like you have a good instructor to work with! I hope you enjoy it.

    BTW: I have long been of the opinion that learning how to fall is one of the most useful aspects that you can learn in Martial Arts. I realize that at 80, the propect of practicing falling might not appeal, but you might want to talk to your friend about it.

    and it is quite problematic whether I could haul out and use my 9mm to stop them all, either

    Thank you for realizing and admitting this. Let me offer a suggestion for training that you can work on with your instructor:

    Find an airsoft (or other pellet gun) which closely resembles your firearm of choice. Start practicing carrying it in your typical holster position (either buy another holster or use your existing one). And then, have your instructor simulate confrontations/attacks (complete with verbal assaults) and work on developing the skills to draw and disengage the safety under that controlled “pressure.” It’s not a 1:1 match, but you’ll find that with some good role playing, you can start to experience what it would be like to deal with a sudden adrenal dump.

    And, for that matter, I would strongly suggest that this gets integrated into whatever self-defense training that your instructor has planned. Good self-defense training needs to incorporate working on the psychological, emotional, and verbal components of a fight/confrontation, not just the physical ones.

    Time should definitely be spent on verbal de-escalation and also learning how to go to the fight when words are failing.

  56. John says:

    Hell yeah it deters crime, it kills the murderers instead of letting them back out on the street eventually, to kill again.