The Case for Small Government

A Libertarian Perspective on Economic and Social Policy

March 09, 2006

The Death Penalty and Zacarias Moussaoui

The penalty phase of the Zacarias Moussaoui trial began earlier this week. Moussaoui has been convicted of participating in the 9/11 attacks even though he was behind bars at the time. Moussaoui admits he was aware of the plot, and prosecutors argue he could have prevented the attacks by revealing this knowledge when arrested on other charges a month earlier. The question for the penalty phase is whether to impose the death penalty or life in prison.

The Moussaoui case raises two issues.

The first is whether the death penalty is the appropriate verdict in this case, given existing federal law. I take no stand on this issue, since I have not heard all the facts of the case.

The second issue is whether the death penalty is good policy. My answer is no.

To begin, mountains of social science evidence have failed to uncover a substantial deterrent effect of the death penalty. Moreover, common sense suggests that absent execution rates far higher than those observed in modern economies, no criminal should reasonably fear the death penalty. There are fewer than 100 executions per year in the US compared to roughly 16,000 murders.

Beyond failing to reduce murder, the death penalty prevents the criminal justice system from correcting mistakes. The number of people falsely convicted of capital crimes is probably small, but it is unlikely to be zero. Everyone benefits if such cases are partially remedied by freeing those found innocent post conviction.

In addition, the death penalty crowds out discussion of policy changes that might actually reduce crime. I will argue in a later blog that drug legalization is the best example of such a policy.

Use of the death penalty does have one potential benefit, which is saving the resources required to incarcerate someone for life. The net reduction in government expenditure, however, is likely small or even negative given that death penalty cases involve protracted penalty phases and lengthy appeals. The penalty phase of the Moussaoui trial would be trivial if the death penalty were not an option, but it is expected to last one to three months because of the prosecution’s request for the death penalty.

Putting Moussaoui to death might seem appropriate to many people, and this is understandable given the horror of the 9/11 attacks. The broader question, however, is whether the death penalty is an effective criminal justice policy. The answer appears to be no.


At 12:51 AM, Blogger Al Brown said...

The death penalty does provide a deterrant. The executed murderer is permanently deterred.

Seriously, the death penalty should be reserved for only those cases where the guilty party is a real, persistent threat to society. We should avoid using it except where its needed to defend society from a real threat.

Not because the murderer has the right to live. They forfeit that when they kill another person. But because killing is not something an society should be doing unless it has to.

As for the risk that a verdict may be wrong, that is omnipresent in the criminal "justice" system or in anything really.

At 8:57 AM, Blogger Steve Cecchetti said...

There are obvious ethical and scientific reasons to oppose the death penalty. Those notwithstanding, in the Moussaoui case, the most vindictive person in the world should be against the death penalth.

Moussaoui almost surely believes that if he is put to death in his war against the infidels, he will go to heaven -- with all of the attendent pleasures that are currently being advertised.

So, if the goal is to punish Moussaoui to the maximum extend allowed by the law, shouldn't be all advocate lifetime imprisonment that leads to eventual death from natural causes??

At 10:04 AM, Blogger Tom C said...

Prof, I'm not sure I agree with the notion that criminals are reasonable with regard to punishment prospects. On the one hand, most believe they will not be caught; on the other, most believe they will see no jail time if they are. If anything, they are even less likely to think they are gonna fry than a normal person.

However, you can't use the 100 divided by 16,000 for the perceived probability, because humans do not process low-probability large penalties that way. Another post for another time.

At 11:27 AM, Blogger Unknown said...

Prof. Miron is probably correct to note that we do not have reliable statistical evidence proving the deterence effect of the death penalty on potential murderers.

The reason that we do not have reliable statistical evidence of the deterence effect of the death penalty is that, practically speaking, we do not have the death penalty. The number of executions is so tiny that even a perfectly rational murder would discount the possibility.

At 11:37 AM, Blogger Unknown said...

However, where the good professor errs, I think, is in the cost analysis. The costs of a death penalty trial may outweigh the cost of the life-time incarceration of, usually, a health young man (or they may not, the estimates seem to have overlapping ranges).

The cost ignored is the savings on all the guilty pleas on condition that the death-penalty not be imposed. Absent the death penalty, a clearly guilty aggravated murderer has no reason to plead guilty to avoid trial. He has nothing to lose and everything to gain by going the full length of legal procedures, including appeals and habeas procedures, using tax-payer provided counsel.

When the possibility of the death penalty is on the table, a plea to life imprisonment starts making sense for the clearly guilty. As the number of actual executions is so tiny compared to the number of murders, 70-80% of which are resolved by pinpointing the guilty, the life-imprisonment plea effect is almost certain to swamp the cost of the few actual death penalty proceedings.

One might argue that absent the death penalty, plea bargaining by clearly guilty aggravated murderers would still happen. They'd just plead to a term of years or terms involving the possibility of parole under threat of a life-without-parole conviction.

But that is of course just another way of saying that the mere existence, while rarely imposed, of the death penalty keeps the possibility of life-without-parole available for clearly guilty aggravated murderers. That is a tradeoff which will seem favorable to many.

At 10:04 PM, Blogger Bob Schubring said...

Sub Specie Aeternatis writes:
The cost ignored is the savings on all the guilty pleas on condition that the death-penalty not be imposed. Absent the death penalty, a clearly guilty aggravated murderer has no reason to plead guilty to avoid trial.

And there is precisely the difference between libertarians and Big Government liberals and neocons.

The appeal of right of a charge, made by politicians and bureaucrats against private individuals, is essential to the defense of individual liberty. It is obvious that our society can extort guilty pleas from people by threatening them with greater punishments. It is equally obvious that our society can spend less money on prosecutions and trials, and have more funding available for prison construction, fat salaries for public employees, subsidies to donut shops to provide free meals to cops who forget their wallets, and every other supposed public good that might be funded with the money we spend holding trials.

However, the reason we libertarians are aghast at the notion of extorting guilty pleas from people is simply this: The politicians and bureaucrats with whom we entrust the task of enforcing our laws, have the full powers of the state, including inter alia, the power to tax, the power of posse comitatus to conscript people by force into military or police service, the power of eminent domain to seize private property for any alleged public benefit, the power to impair the freedom of speech and of the press by arresting people who utter or publish politically incorrect statements, and above all that, the power of sovereign immunity and of qualified immunity from prosecution for deeds done that allegedly were done for the public good.

Stacked up against that vast arsenal of political powers is the accused and his or her counsel. To libertarians, it is plain as mud that we must not punish people more severely for exercising their right to challenge the state's allegations that they are guilty of something, for it is the beginning of the slippery slope toward totalitarianism, where one is thought guilty not of a crime, but of standing accused of a crime.

To neocons, it's all a matter of money.

Donut, anyone?

At 9:04 AM, Blogger Unknown said...

Bob Schubring stated that
To libertarians, it is plain as mud that we must not punish people more severely for exercising their right to challenge the state's allegations that they are guilty of something, for it is the beginning of the slippery slope toward totalitarianism, where one is thought guilty not of a crime, but of standing accused of a crime.

This may be clear to Bob Schubring, but it is not to at least some self-identified, if perhaps defective, libertarians.

To say that "we must not punish people more severely for exercising their right to challenge the state's allegations" is the logical equivalent of saying that we must never, ever offer a plea bargain better than the worst possible outcome at trial.

That is to outlaw plea bargains because who but a fool would ever take a plea bargain no better than the worst a trial could produce, when a trial comes at no cost to the defendant and may by chance, however remote, produce a better outcome. (Beyond that, even if there was no chance of a better outcome at trial, many a defendant would put the taxpayer to the cost of the trial and an appellate process out of no better reason than resentment against those who caught him.)

So, to argue as Mr. Schubring does is to require every single criminal case, no matter how meritorious the law and the evidence is, to go through a full trial, appeals in two or three courts, and a habeas process in another six or seven courts. This conclusion is not assertion or rhethoric--it is a logical inevitability as much as anything in Euclid.

Moreover, this conclusion remains regardless of one's views of the power of the state, concededly often overbearing, and criminal laws against, for example, victimless crimes, concededly unwise and unjust. As long as one is willing to uphold the criminal laws against murder, rape, and theft, this problem remains.

At 1:55 PM, Blogger Ananda said...

Perhaps fewer things ought to be crimes, then.

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