Different Arguments

Sometimes I come up with them

Against the Death Penalty

Opponents argue that even the best legal system sometimes makes mistakes and that a system that sometimes makes mistakes ought to limit itself to mistakes that can be corrected. Letting a wrongfully convicted defendant out of prison is easier than bringing him back from the dead.

The irreversibility of the death penalty is good rhetoric but bad argument. It is true that a mistaken imprisonment can be in part corrected while a mistaken execution cannot. But the criminal justice system rarely discovers its mistakes; an unjust imprisonment that will not be recognized as such is as irreversible as an unjust execution.

If the death penalty deters more effectively than other punishments, then using it lets us either deter more crimes and so reduce the number of innocent victims who are killed or raise our standard of proof, convicting fewer innocent defendants while maintaining the level of deterrence by punishing those convicted more severely. Executing an innocent defendant is a bad thing but perhaps less bad than letting two innocent victims be killed or locking up three innocent defendants for the rest of their lives.

There is a different argument against the death penalty that I find more convincing than any of these, one that starts with what looks like an argument for it. Executing people is cheap, imprisoning them expensive. This is not true in the U.S. at present, because sentiment against capital punishment has resulted in elaborate and time consuming procedural constraints on its implementation. But in a society that is serious about capital punishment, hanging someone costs a lot less than housing, guarding and feeding him for fifty years.

In a legal system run by benevolent philosopher kings, cheap punishments would be an unambiguous benefit. In our world, it means that a large cost — the loss of a life — is imposed on someone by people who bear a very small cost for doing so. Having A make a decision most of whose costs are born by B is a recipe for bad decisions, in this case lethally bad.

The point is nicely illustrated by a famous, but probably apocryphal, historical incident. During the Albigensian crusade, one of the leaders supposedly asked the Papal legate how they were to distinguish the heretics in the city they had just taken from the good Catholics who happened to be their neighbors.

“Kill them all. God will know his own.”

The risks of cheap punishments.

For a broader and more academic discussion, see my “Why Not Hang Them All: The Virtues of Inefficient Punishment,” Journal of Political Economy, vol. 107, no. 6 1999 pp. S259-269. There is also a webbed version of the argument in my Law’s Order (search for “Why Not Hang Them All).

[I have ignored a fourth argument against the death penalty — that it doesn’t deter. Whether or not that is the case has been, for the past fifty years or so, one of several academic controversies where scholarly research has a disturbing tendency to support whichever conclusion the researcher already believed in.]

For the Right to Bear Arms

Supporters usually offer one or more of three arguments: The Second Amendment to the Constitution, the need for a last ditch defense against a tyrannical government, or deterring and preventing crime. The first of these is relevant to a U.S. court but not to what the law should be. If the right to bear arms is a good thing we should have it even if it was not in the Constitution; if it is a bad thing we should repeal the 2nd Amendment and, until we do, interpret it as narrowly as possible — as many courts have done.

At the time the Constitution was being written, the second argument would have been persuasive. As Cromwell had demonstrated a century and a half earlier, a large professional army could create a military dictatorship. A large militia consisting of all adult males let a country defend itself with only a small professional army; if that army got uppity, its superior quality would be outweighed by the militia’s vastly superior numbers.

In the centuries since, both the relative size of the military and the gap between military and civilian weapons have greatly increased, making that solution less workable. In my view, at least, conflicts between our government and its citizens in the immediate future will depend more on control of information than control of weapons, making unregulated encryption, as I have argued elsewhere, the modern equivalent of the 2nd Amendment.

I made the theoretical argument for possession of concealed weapons as a deterrent to crime in a chapter of my (webbed) Price Theory. The empirical argument was made later in an article by John Lott and David Mustard that set off an extended scholarly controversy. While I still find the theoretical argument convincing, the empirical question appears to be still open.

There is another, perhaps better, argument for private possession of firearms. If the population is disarmed, protection against crime is provided mainly by the police. People very much want not to be victims of crimes, so if protection depends on the police there will be public support for expanding the powers of the police in order to better protect us. The result is a more powerful government, which I think a bad thing.

Given the current government, I would expect that argument to appeal to some who in the past found the first three unconvincing.

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