"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."
The problem with that formulation is the word "letting."
If I rob a bank in a novel way, that may spur a number of banks to improve their security systems so as to prevent the use of that method in the future.
But if I don't do so I'm not "letting" other potential bank robbers who come up with the method independently rob those other banks that didn't prepare for it -- I'm not responsible for those other robbers or their robberies.
I'm against the death penalty because I'm against unlimited government -- and power of life and death over disarmed prisoners is unlimited government.
“Given the current government, I would expect that argument to appeal to some who in the past found the first three unconvincing.”
I think the number here - you are referring, no doubt to the people who claim/believe Trump is authoritarian (please correct me if I’m mistaken) - is quite small.
Almost all of those who despise Orange Man Bad definitively want more and bigger government; they just want it from someone less vulgar and who aligns with their tribe.
More generally, people who took it for granted that government would be on their side and are now worried that it may not be, for a long time or perhaps permanently.
The Boomer left for decades thought that government was “The Man” and against them.
Then of course, for decades, the left / Democrats have been the side/party of government. Which has only intensified in the last 20 years.
But they didn’t think government was on their side during W Bush nor certainly during Trump 45.
They’ve never taken government for granted. Quite the opposite. To the activist left, the struggle for political power is the most important thing there is.
The left cheered on most of the authoritarian government we got under Biden; what complaints there were were mostly that the government didn’t do enough, not that it did too much.
So it’s quite a leap to suggest that for the people with those views this time would be a sea change.
Unless they believe that the GOP will be in power permanently.
But they do not. That claim is just one more money-raising rallying cry.
In fact it is far more likely given the worldview that it makes it even more important to them - if that were even possible - that they take power away from Orange Man Bad and take it back for themselves.
IMO you are confusing the *liberals* of the past with the *leftists* of today.
Today’s left is highly il-liberal, so the idea that seeing government action they don’t like would lead them to conclude that there should be less government flies in the face of all evidence.
So I *hope* that you are correct, but see neither logic nor evidence that you are.
My antipathy to the death penalty comes primarily from a distrust of government, and the belief that far too often, the State police and prosecutors are more interested in closing cases than solving them. The final straw was when Illinois governor George Ryan commuted 160 death sentences to life without parole in 2003 because 12 death row prisoners had been executed but 13 exonerated because of police and/or prosecutor malfeasance. I do not remember the details and probably have some wrong, but that doesn't affect the general theme. Some of the framed suspects probably had such lengthy rap sheets that society was better off with them in prison.
But I don't like letting death cover up malfeasance, and it disgusts me not only that the real criminals got away scot-free while innocents were executed, but that the police and prosecutors were happy with that trade.
I'd bet it applies to almost all police departments and district attorney offices. They are third parties. The police's skin in the game is promotions and covering up for their colleagues. Elected chiefs' and prosecutors' only skin in the game is the same, but the promotions are by counting votes. I imagine someone has already coined a phrase similar to "no one ever got elected for not prosecuting innocent criminals."
I don’t see this argument all that frequently, but how about “guns should be legal because the alternative, at least in a country where people are accustomed to having them, would be a relatively huge black market in illegal guns, which is worse than legal guns + a relatively small black market in illegal guns as we have now.”
That saying (which I have seen) is one component of the argument, which would also encompass outlaws transporting, selling, and doing other things with guns apart from “having” them.
From a European perspective, the American stance is a moral contradiction laid bare: the state claims the right to kill in the name of justice while citizens claim the right to kill in the name of freedom. On one hand, human life is declared forfeitable after a fallible trial; on the other, it is exposed daily to lethal force without trial at all, sanctified by an eighteenth-century amendment treated as untouchable scripture.
This is not a coherent philosophy. It is a culture of legalized violence. Europe learned—at immense cost—that when the state kills and weapons circulate freely, justice does not prevail. Fear does. Bias does. Arbitrary power does. The United States, by contrast, persists in calling “liberty” what looks, from this side of the Atlantic, like a civilizational failure: a society that has not rejected violence, only redistributed it—sometimes to the executioner, sometimes to the neighbor.
defending both the death penalty and widespread gun ownership is not about protecting life. It is about institutionalizing its disposability, then absolving oneself with abstract principles. Europe chose to disarm both the state and the citizen. America chose to arm them both. The outcomes are visible, measurable, and grimly repetitive.
European states don't reject violence. Police still kill, without a trial, people trying to kill them, which is the situation in which American civilians are entitled to kill. European states are not disarmed — they have armies with guns, and police forces with access to guns, in some cases routinely carried. The difference is that American civilians are entitled to defend themselves with guns as are American and European police officers.
I am guessing from your name that you are French. France routinely uses firearms in conflicts in its ex-colonies in Africa.
I am not sure what you consider the relevant outcomes.
Your utilitarian position leads you to put the death penalty on the same level as self-defense. From this perspective, executing an innocent person may be more advantageous than letting more innocent people die, just as accidental deaths related to weapons can be accepted if they reduce overall crime.
But your libertarian position leads you to prefer a death penalty distributed by the market (self-defense) rather than by the state (the death penalty). This should lead you to sentence to death.
The European position resolves this contradiction by introducing a moral principle. (And admit that there is morality in this! thou shalt not kill.) From a moral point of view, it is not the same thing to kill to punish and to kill to prevent. Intentional killing by the state cannot be morally optimized, the state does not have the moral power to kill to punish. Self-defence can be tolerated in extreme situations, but it cannot be an argument for improving a social record.
Your colonial argument is a shift in the debate. Yes, France has exercised armed violence in its former colonies in a questionable way. But this is a matter of foreign policy and imperial history, not of the internal social contract. To confuse the two is to say that a society that once waged war can no longer think about limiting domestic violence.
As for the "relevant results" : they are empirical. Homicide rate, gun mortality, irreversible miscarriages of justice, diffuse fear, over-incarceration. On all these indicators, societies that combine the death penalty with the wide circulation of civilian weapons systematically perform worse than those that restrict both.
Frank points out the obvious problem, for which one solution is looking at a country before and after changes in the law, which I did for the UK in my blog post.
I agree with you, and Franc. But as I am replying to Franc, this is not my point. Rather, it concerns the coherence of a libertarian and utilitarian position who claims both the death penalty and the carrying of weapons. Two things that shock the Frenchman that I am. It seems to me that the European stance is rooted in human rights: life is an inviolable value, not a variable in a cost benefit calculation. The death penalty is morally condemned, and civilian gun ownership is strictly limited, because violence must never be normalized or treated as a tool of social optimization.
"On all these indicators, societies that combine the death penalty with the wide circulation of civilian weapons systematically perform worse than those that restrict both."
My first thought is that the causality is reversed: Less violent societies have abolished the death penalty and have no need for widespread gun rights.
Yes, there is a problem of causality and specification of the other explanatory variables, of which culture and habits and customs are part. But my subject was not that. My subject is that according to Weber, the modern state is defined by its monopoly on legitimate violence. Libertarians who support the death penalty grant the state ultimate power over human life—power they claim to want to limit. It’s a paradox: they decry the expansion of state power while giving it the irreversible right to kill, all while allowing citizens to wield weapons and enact justice themselves. The irony is total: violence becomes both sacred and privatized, justified in the name of freedom and utility.
Don't confuse France or the EU with Europe. Fear and violence are definitely being rejected in Serbia, Albania, Ukraine, Moldova, Turkey, etc. Switzerland does just fine with widespread gun ownership. Belarus still has the death penalty as well.
The interesting question is not whether state violence exists, but how it is limited, justified, contested and made costly. It is precisely on this point that the European and American trajectories diverge.
Maybe so. European government violence seems to be directed against free speech, popular political parties, farmers, and others whose only crime has been upsetting government bureaucrats.
In Europe, when the state censors, represses, or gets it wrong, it violates its own principles. In the United States, when the state executes or a citizen shoots someone, it is exercising them.
That’s nice. You forgot to add that States never admit wrongdoing. What good do all your high-falutin’ principles do when the state violates its own principles?
I can’t figure out where you are going with this. On the one hand, you are outraged — OUTRAGED! — that the US “allows” citizens to arm themselves. Oh, the horror, the horror, that any citizen might dare to protect himself!
On the other hand, you quibble about which principle is better — that Europe regularly violates its own principles by censoring, repressing, and “getting it wrong” (is that some new euphemism for “killing”?), or that because the US “lets” its citizens defend themselves (which you refuse to admit is different from the more generic “shoots someone”), that is somehow the government exercising its principles, which you do not otherwise define.
It seems that all you are really doing is making up word salads in praise of Europe being “better” because it violates its own principles when it censors, represses, and kills its own citizens.
Does research supporting the deterrent effect of the death penalty actually "support whichever conclusion the researcher already believed in"? My impression is that the economists who have done studies which found a significant deterrent effect have mostly been personally opposed to the death penalty when they began their studies. I am thinking of Isaac Ehrlich and the economists cited in fn. 9 of Cass Sunstein & Adrian Vermeule's Stanford Law Review article "Is Capital Punishment Morally Required?"
The argument that you find most convincing seems to me to cut the other way. Most murders and other violent crime are geographically concentrated in a few neighborhoods. The people whose political representatives decide how severely to punish crimes committed in those neighborhoods mostly live in safe areas. This means that the decisions as to how tolerable the level of violent crime is are largely made by people who themselves are not exposed to it. Isn't your "having A make a decision most of whose costs are born by B is a recipe for bad decisions" an argument against democratic government, except at the neighborhood level, not an argument against the death penalty as such?
I don't know Ehrlich and a quick web search doesn't turn up information on his view of capital punishment prior to his research. I was thinking more of the concealed carry dispute.
It is an argument both against democracy and against cheap punishments. The political alternatives to democracy, unfortunately, have the same problem, so it is really an argument against having decisions made by political mechanisms.
For how decisions currently made by political mechanisms, including this one, could be made by market mechanisms, see my first book:
Today in the U.S. all significant judicially imposed punishments are expensive, but socially imposed punishments (i.e., cancellation) which cost people their reputations and livelihoods are very cheap.
When you say that you don't know Ehrlich do you mean that you don't know him personally or that you are unfamiliar with his work? I think that it is fair to say that he has been an important figure - seminal, really - in the study of the economics of the death penalty, and the economics of crime generally.
The problem with expensive punishment is that the more expensive punishment becomes the less punishment there will be. If punishing shoplifting and vandalism is made more expensive there will be more shoplifting and vandalism. San Francisco demonstrated this. How do you translate your general antipathy to cheap punishments to an optimal cost?
I meant that I don't know him personally. I was aware of Ehrlich's work but that doesn't tell me whether he wanted it to come out that way. John Lott, who set off the concealed carry dispute, is an ex-student and friend.
There are obviously disadvantages to expensive punishments. I was pointing out that there is also an advantage.
If you assume a philosopher king government you can derive optimal rules but my point comes from the fact that we don't have that. Without a more precise theory of government behavior than we have, I can't derive an optimal cost.
Prison changes a person; often for the worse. Letting a wrongfully convicted person out of prison doesn't restore the previous state for the prisoner or society. Everyone still ends up worse off. When you calculate the advantages and disadvantages of the death penalty don't pretend that restoring the previous state is possible; it's not.
I believe that there is nothing more cruel and unusual than telling the loved ones of a victim that their loss is as nothing and the murderer will be fed, housed and looked after for the rest of their lives.
I have always approached gun rights differently, perhaps more broadly. When shooting, there are these things called externalities. I wanna hit the bad guys, whoever they may be, but instead, I hit the good guys. Bad. You like shooting, go to a gun range. Abandon hope all ye who enter here.
When A2 was written, the weapon of choice was the musket. Took long to reload [exceptional soldiers could do four shots per minute], couldn't hit the side of a barn [hence the need for a line of soldiers to shoot and get shot at], and useless in the rain. Low externalities.
It seems US jurisprudence relies on the principle that you can regulate firearms but only if they have been historically regulated that way. Technological improvements in firearms have been gradual, so a rifle was not regulated differently from the past. [By the way, the rifle, being longer, was slower than the musket in reloading.] But technological improvements have been cumulative. The thing is still called a rifle but even a semi-automatic rife of today is a rapid fire weapon compared to the 1780's.
I'm disappointed that Scalia didn't notice. He did, after all, have an 18th century dictionary in his office. But he wasn't dumb. He did say in Heller that regulations for safety were not illegal.
Your first point doesn't rule against the right to bear arms, only against the right to shoot carelessly.
The implications of the second are not clear. Rifles were used in the Revolutionary war, their greater accuracy making up for the slower rate of fire, so would have been included in the original right. Repeating firearms existed in the 18th century (the Lanzoni system), although they were exotic and expensive and there were probably none in the country when the Constitution was written. There were no semi-automatic firearms that I know of, but the military air rifle used by the Austrians in the Napoleonic wars was a semi-automatic military arm — I am not sure how early it existed. Since the amendment specified "arms" not "muskets" I think it has to be read as applying to at least all arms then existing and probably to anything similar that developed, since the Constitution was designed to be hard to amend. I can see your argument applying to atom bombs, guided missiles, and perhaps fully automatic rifles but not to anything much closer to what the authors intended.
On the second point, my opinion is merely that we're far away from what the authors knew about, and indeed, from the counterexamples you provide.
I cannot buy a fully automatic rifle today because it has never been traditionally used. All I'm saying is that a contemporary semi-automatic is one hell of a lot closer to an automatic that to a musket.
The jurisprudence is convoluted, but not idiotic. It could be built on.
I have always been skeptical of the death penalty, precisely because of hanging too many innocents for the guilty ones. I confess to having given too little attention to the number of lives saved by deterrence. But nowadays, with DNA testing it is likely that the chance of executing the innocent has fallen. So I am warming up to the death penalty.
Historically few people were imprisoned. It was just too damned expensive. Death penalty aside, they were punished by public shaming, as with the stockade. In the 21st century we are not strangers to public shaming, so maybe there's an opportunity to save some cash here.
In general, it seems something like indentured servitude would be more efficient than imprisonment, even for murder.
There is a wonderful story, likely apocryphal, about a magistrate in Nuremberg in the middle ages who was accused of misusing funds. He was found guilty, but being of high rank, he was imprisoned. He begged for, and was granted, his wish of getting sausages in his prison cell. So was invented the Nuremberg Bratwurst, small enough to fit through the keyhole of the locked cell!
Galley slavery apparently did not exist as a criminal punishment in classical antiquity, contrary to the usual picture. When it starts, I think in the Renaissance, Mediterranean powers pretty much stop executing healthy male prisoner because there is now a more profitable use for them. I discuss it briefly in my _Legal Systems Very Different_. I conjecture that the change was due to the shift from naval warfare as hand to hand fighting on ships to warfare as exchanges of cannon fire. With the earlier model the last thing you want is a crew that is chained, unarmed, and hates you.
People get overexcited about DNA testing. It's nice because it's easy on questions like "semen doesn't match" but those are rare cases on the wrongful conviction front. Most are just the jury simply got it wrong and ignore the evidence, ascribe innuendo as facts, or just didn't like the guy. DNA doesn't catch that.
For example plenty if people are locked up simply because they can't prove their innocence. Think all the people that were imprisoned, some executed, for SIDS. Or the guy whose wife legitimately falls downstairs right after they had a loud argument the neighbors heard and were in the middle of a messy divorce with infidelity and a history of domestic violence. Speech criminals are notoriously innocent, tons of people are imprisoned for conspiracies, threats, solicitations, etc they would never have acted on, they just wrote words that were misconstrued or evaluated as accurately predicting the future.
One nice thing about DNA testing is that it can be used to reevaluate cases decided before it was available, giving us some information on the error rate in criminal conviction.
Re your last argument in favour of gun ownership, have you considered international comparisons? In Britain, for example, most guns are banned, but as far as I know the police are less powerful and more restrained than in the USA.
I’m an Englishman but I live in Spain, where guns are somewhat less illegal but not commonly owned; the police don’t seem overpowerful.
I’ve never owned a gun and never felt the need of one. Even if I managed to own a gun legally, if I shot anyone with it, I’d be treated as a criminal myself in most circumstances.
Presumably, the more horrific the form of execution is, the better it would work as a deterrent? If, at the same time, that form of execution is very cheap and easy to perform, that would presumably strengthen the argument further?
I once went on a tour of Tallinn, Estonia. There, I saw a medieval tower that was allegedly used by the Danes (the rulers at the time) for executions. The tower was hollow and at least 30 ft. tall. The condemned person would simply be pushed into the tower from the top. Gravity would do the rest. The prospect of not dying straight away was probably more horrifying than the prospect of immediate death, since mere injury would leave the person mangled and in extreme pain for days among the rotting remnants of previous occupants. All in complete darkness and with no food or water provided.
However, in spite of deterrence and effectiveness, I am still against the death penalty because I consider it barbaric and more irreversible than a long prison sentence. People can be compensated (financially) for a long prison sentence that was passed in error but not for a death penalty passed in error.
That would be an interesting research topic. On the one hand, the longer the sentence, the more chance to investigate and correct errors, and the more chance of judicial sensibilities changing at least temporarily to recognize the errors. On the other hand, the longer since the sentence started, the less it holds any public interest.
There is a small chance that an error is discovered in the case of a long prison sentence so compensation is occasionally possible but in the case of an erroneous death sentence compensation is never possible after the sentence has been carried out.
"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."
The problem with that formulation is the word "letting."
If I rob a bank in a novel way, that may spur a number of banks to improve their security systems so as to prevent the use of that method in the future.
But if I don't do so I'm not "letting" other potential bank robbers who come up with the method independently rob those other banks that didn't prepare for it -- I'm not responsible for those other robbers or their robberies.
I'm against the death penalty because I'm against unlimited government -- and power of life and death over disarmed prisoners is unlimited government.
“Given the current government, I would expect that argument to appeal to some who in the past found the first three unconvincing.”
I think the number here - you are referring, no doubt to the people who claim/believe Trump is authoritarian (please correct me if I’m mistaken) - is quite small.
Almost all of those who despise Orange Man Bad definitively want more and bigger government; they just want it from someone less vulgar and who aligns with their tribe.
More generally, people who took it for granted that government would be on their side and are now worried that it may not be, for a long time or perhaps permanently.
The Boomer left for decades thought that government was “The Man” and against them.
Then of course, for decades, the left / Democrats have been the side/party of government. Which has only intensified in the last 20 years.
But they didn’t think government was on their side during W Bush nor certainly during Trump 45.
They’ve never taken government for granted. Quite the opposite. To the activist left, the struggle for political power is the most important thing there is.
The left cheered on most of the authoritarian government we got under Biden; what complaints there were were mostly that the government didn’t do enough, not that it did too much.
So it’s quite a leap to suggest that for the people with those views this time would be a sea change.
Unless they believe that the GOP will be in power permanently.
But they do not. That claim is just one more money-raising rallying cry.
In fact it is far more likely given the worldview that it makes it even more important to them - if that were even possible - that they take power away from Orange Man Bad and take it back for themselves.
IMO you are confusing the *liberals* of the past with the *leftists* of today.
Today’s left is highly il-liberal, so the idea that seeing government action they don’t like would lead them to conclude that there should be less government flies in the face of all evidence.
So I *hope* that you are correct, but see neither logic nor evidence that you are.
My antipathy to the death penalty comes primarily from a distrust of government, and the belief that far too often, the State police and prosecutors are more interested in closing cases than solving them. The final straw was when Illinois governor George Ryan commuted 160 death sentences to life without parole in 2003 because 12 death row prisoners had been executed but 13 exonerated because of police and/or prosecutor malfeasance. I do not remember the details and probably have some wrong, but that doesn't affect the general theme. Some of the framed suspects probably had such lengthy rap sheets that society was better off with them in prison.
But I don't like letting death cover up malfeasance, and it disgusts me not only that the real criminals got away scot-free while innocents were executed, but that the police and prosecutors were happy with that trade.
Yah. Chicago cops are uniquely famous for beating confessions out of suspects, but probably not uniquely prone to it.
I'd bet it applies to almost all police departments and district attorney offices. They are third parties. The police's skin in the game is promotions and covering up for their colleagues. Elected chiefs' and prosecutors' only skin in the game is the same, but the promotions are by counting votes. I imagine someone has already coined a phrase similar to "no one ever got elected for not prosecuting innocent criminals."
I don’t see this argument all that frequently, but how about “guns should be legal because the alternative, at least in a country where people are accustomed to having them, would be a relatively huge black market in illegal guns, which is worse than legal guns + a relatively small black market in illegal guns as we have now.”
You means like ... "If guns are outlawed, only outlaws will have guns"?
That saying (which I have seen) is one component of the argument, which would also encompass outlaws transporting, selling, and doing other things with guns apart from “having” them.
From a European perspective, the American stance is a moral contradiction laid bare: the state claims the right to kill in the name of justice while citizens claim the right to kill in the name of freedom. On one hand, human life is declared forfeitable after a fallible trial; on the other, it is exposed daily to lethal force without trial at all, sanctified by an eighteenth-century amendment treated as untouchable scripture.
This is not a coherent philosophy. It is a culture of legalized violence. Europe learned—at immense cost—that when the state kills and weapons circulate freely, justice does not prevail. Fear does. Bias does. Arbitrary power does. The United States, by contrast, persists in calling “liberty” what looks, from this side of the Atlantic, like a civilizational failure: a society that has not rejected violence, only redistributed it—sometimes to the executioner, sometimes to the neighbor.
defending both the death penalty and widespread gun ownership is not about protecting life. It is about institutionalizing its disposability, then absolving oneself with abstract principles. Europe chose to disarm both the state and the citizen. America chose to arm them both. The outcomes are visible, measurable, and grimly repetitive.
European states don't reject violence. Police still kill, without a trial, people trying to kill them, which is the situation in which American civilians are entitled to kill. European states are not disarmed — they have armies with guns, and police forces with access to guns, in some cases routinely carried. The difference is that American civilians are entitled to defend themselves with guns as are American and European police officers.
I am guessing from your name that you are French. France routinely uses firearms in conflicts in its ex-colonies in Africa.
I am not sure what you consider the relevant outcomes.
Your utilitarian position leads you to put the death penalty on the same level as self-defense. From this perspective, executing an innocent person may be more advantageous than letting more innocent people die, just as accidental deaths related to weapons can be accepted if they reduce overall crime.
But your libertarian position leads you to prefer a death penalty distributed by the market (self-defense) rather than by the state (the death penalty). This should lead you to sentence to death.
The European position resolves this contradiction by introducing a moral principle. (And admit that there is morality in this! thou shalt not kill.) From a moral point of view, it is not the same thing to kill to punish and to kill to prevent. Intentional killing by the state cannot be morally optimized, the state does not have the moral power to kill to punish. Self-defence can be tolerated in extreme situations, but it cannot be an argument for improving a social record.
Your colonial argument is a shift in the debate. Yes, France has exercised armed violence in its former colonies in a questionable way. But this is a matter of foreign policy and imperial history, not of the internal social contract. To confuse the two is to say that a society that once waged war can no longer think about limiting domestic violence.
As for the "relevant results" : they are empirical. Homicide rate, gun mortality, irreversible miscarriages of justice, diffuse fear, over-incarceration. On all these indicators, societies that combine the death penalty with the wide circulation of civilian weapons systematically perform worse than those that restrict both.
I discussed some of that, in the context of gun control not the death penalty, on my old blog, and there were some interesting comments, including one from a Czech who offered his country as a counterexample to the pattern you note. https://daviddfriedman.blogspot.com/2017/10/gun-control-and-homicide-rates.html
Frank points out the obvious problem, for which one solution is looking at a country before and after changes in the law, which I did for the UK in my blog post.
I agree with you, and Franc. But as I am replying to Franc, this is not my point. Rather, it concerns the coherence of a libertarian and utilitarian position who claims both the death penalty and the carrying of weapons. Two things that shock the Frenchman that I am. It seems to me that the European stance is rooted in human rights: life is an inviolable value, not a variable in a cost benefit calculation. The death penalty is morally condemned, and civilian gun ownership is strictly limited, because violence must never be normalized or treated as a tool of social optimization.
"On all these indicators, societies that combine the death penalty with the wide circulation of civilian weapons systematically perform worse than those that restrict both."
My first thought is that the causality is reversed: Less violent societies have abolished the death penalty and have no need for widespread gun rights.
Yes, there is a problem of causality and specification of the other explanatory variables, of which culture and habits and customs are part. But my subject was not that. My subject is that according to Weber, the modern state is defined by its monopoly on legitimate violence. Libertarians who support the death penalty grant the state ultimate power over human life—power they claim to want to limit. It’s a paradox: they decry the expansion of state power while giving it the irreversible right to kill, all while allowing citizens to wield weapons and enact justice themselves. The irony is total: violence becomes both sacred and privatized, justified in the name of freedom and utility.
Japan is your hard counterexample, most of East Asia to for that matter including China.
Don't confuse France or the EU with Europe. Fear and violence are definitely being rejected in Serbia, Albania, Ukraine, Moldova, Turkey, etc. Switzerland does just fine with widespread gun ownership. Belarus still has the death penalty as well.
Totally agree! Europe isn’t the same as the EU.
> This is not a coherent philosophy. It is a culture of legalized violence.
You just described all governments.
The interesting question is not whether state violence exists, but how it is limited, justified, contested and made costly. It is precisely on this point that the European and American trajectories diverge.
Maybe so. European government violence seems to be directed against free speech, popular political parties, farmers, and others whose only crime has been upsetting government bureaucrats.
In Europe, when the state censors, represses, or gets it wrong, it violates its own principles. In the United States, when the state executes or a citizen shoots someone, it is exercising them.
That’s nice. You forgot to add that States never admit wrongdoing. What good do all your high-falutin’ principles do when the state violates its own principles?
I can’t figure out where you are going with this. On the one hand, you are outraged — OUTRAGED! — that the US “allows” citizens to arm themselves. Oh, the horror, the horror, that any citizen might dare to protect himself!
On the other hand, you quibble about which principle is better — that Europe regularly violates its own principles by censoring, repressing, and “getting it wrong” (is that some new euphemism for “killing”?), or that because the US “lets” its citizens defend themselves (which you refuse to admit is different from the more generic “shoots someone”), that is somehow the government exercising its principles, which you do not otherwise define.
It seems that all you are really doing is making up word salads in praise of Europe being “better” because it violates its own principles when it censors, represses, and kills its own citizens.
I’ll explain it simply.
All states abuse power. But not all of them turn the right to kill into a constitutional principle.
In Europe, when the state represses, it is in the wrong.
In the United States, when the state kills — Black Lives Matter exists to remind us of this — it is often within its rights.
That’s the difference:
a principle violated versus a principle claimed.
Does research supporting the deterrent effect of the death penalty actually "support whichever conclusion the researcher already believed in"? My impression is that the economists who have done studies which found a significant deterrent effect have mostly been personally opposed to the death penalty when they began their studies. I am thinking of Isaac Ehrlich and the economists cited in fn. 9 of Cass Sunstein & Adrian Vermeule's Stanford Law Review article "Is Capital Punishment Morally Required?"
The argument that you find most convincing seems to me to cut the other way. Most murders and other violent crime are geographically concentrated in a few neighborhoods. The people whose political representatives decide how severely to punish crimes committed in those neighborhoods mostly live in safe areas. This means that the decisions as to how tolerable the level of violent crime is are largely made by people who themselves are not exposed to it. Isn't your "having A make a decision most of whose costs are born by B is a recipe for bad decisions" an argument against democratic government, except at the neighborhood level, not an argument against the death penalty as such?
I don't know Ehrlich and a quick web search doesn't turn up information on his view of capital punishment prior to his research. I was thinking more of the concealed carry dispute.
It is an argument both against democracy and against cheap punishments. The political alternatives to democracy, unfortunately, have the same problem, so it is really an argument against having decisions made by political mechanisms.
For how decisions currently made by political mechanisms, including this one, could be made by market mechanisms, see my first book:
http://www.daviddfriedman.com/Machinery 3rd Edn.pdf
Today in the U.S. all significant judicially imposed punishments are expensive, but socially imposed punishments (i.e., cancellation) which cost people their reputations and livelihoods are very cheap.
When you say that you don't know Ehrlich do you mean that you don't know him personally or that you are unfamiliar with his work? I think that it is fair to say that he has been an important figure - seminal, really - in the study of the economics of the death penalty, and the economics of crime generally.
The problem with expensive punishment is that the more expensive punishment becomes the less punishment there will be. If punishing shoplifting and vandalism is made more expensive there will be more shoplifting and vandalism. San Francisco demonstrated this. How do you translate your general antipathy to cheap punishments to an optimal cost?
I meant that I don't know him personally. I was aware of Ehrlich's work but that doesn't tell me whether he wanted it to come out that way. John Lott, who set off the concealed carry dispute, is an ex-student and friend.
There are obviously disadvantages to expensive punishments. I was pointing out that there is also an advantage.
If you assume a philosopher king government you can derive optimal rules but my point comes from the fact that we don't have that. Without a more precise theory of government behavior than we have, I can't derive an optimal cost.
Prison changes a person; often for the worse. Letting a wrongfully convicted person out of prison doesn't restore the previous state for the prisoner or society. Everyone still ends up worse off. When you calculate the advantages and disadvantages of the death penalty don't pretend that restoring the previous state is possible; it's not.
I believe that there is nothing more cruel and unusual than telling the loved ones of a victim that their loss is as nothing and the murderer will be fed, housed and looked after for the rest of their lives.
Why yes, I keep and bear arms. I categorically reject any and all arguments against my doing so.
What you do, what your take on the subject is, is your business and none of mine, of course.
I have always approached gun rights differently, perhaps more broadly. When shooting, there are these things called externalities. I wanna hit the bad guys, whoever they may be, but instead, I hit the good guys. Bad. You like shooting, go to a gun range. Abandon hope all ye who enter here.
When A2 was written, the weapon of choice was the musket. Took long to reload [exceptional soldiers could do four shots per minute], couldn't hit the side of a barn [hence the need for a line of soldiers to shoot and get shot at], and useless in the rain. Low externalities.
It seems US jurisprudence relies on the principle that you can regulate firearms but only if they have been historically regulated that way. Technological improvements in firearms have been gradual, so a rifle was not regulated differently from the past. [By the way, the rifle, being longer, was slower than the musket in reloading.] But technological improvements have been cumulative. The thing is still called a rifle but even a semi-automatic rife of today is a rapid fire weapon compared to the 1780's.
I'm disappointed that Scalia didn't notice. He did, after all, have an 18th century dictionary in his office. But he wasn't dumb. He did say in Heller that regulations for safety were not illegal.
Your first point doesn't rule against the right to bear arms, only against the right to shoot carelessly.
The implications of the second are not clear. Rifles were used in the Revolutionary war, their greater accuracy making up for the slower rate of fire, so would have been included in the original right. Repeating firearms existed in the 18th century (the Lanzoni system), although they were exotic and expensive and there were probably none in the country when the Constitution was written. There were no semi-automatic firearms that I know of, but the military air rifle used by the Austrians in the Napoleonic wars was a semi-automatic military arm — I am not sure how early it existed. Since the amendment specified "arms" not "muskets" I think it has to be read as applying to at least all arms then existing and probably to anything similar that developed, since the Constitution was designed to be hard to amend. I can see your argument applying to atom bombs, guided missiles, and perhaps fully automatic rifles but not to anything much closer to what the authors intended.
On the first point absolutely agreed.
On the second point, my opinion is merely that we're far away from what the authors knew about, and indeed, from the counterexamples you provide.
I cannot buy a fully automatic rifle today because it has never been traditionally used. All I'm saying is that a contemporary semi-automatic is one hell of a lot closer to an automatic that to a musket.
The jurisprudence is convoluted, but not idiotic. It could be built on.
Fruitful thoughts, as usual.
I have always been skeptical of the death penalty, precisely because of hanging too many innocents for the guilty ones. I confess to having given too little attention to the number of lives saved by deterrence. But nowadays, with DNA testing it is likely that the chance of executing the innocent has fallen. So I am warming up to the death penalty.
Historically few people were imprisoned. It was just too damned expensive. Death penalty aside, they were punished by public shaming, as with the stockade. In the 21st century we are not strangers to public shaming, so maybe there's an opportunity to save some cash here.
In general, it seems something like indentured servitude would be more efficient than imprisonment, even for murder.
There is a wonderful story, likely apocryphal, about a magistrate in Nuremberg in the middle ages who was accused of misusing funds. He was found guilty, but being of high rank, he was imprisoned. He begged for, and was granted, his wish of getting sausages in his prison cell. So was invented the Nuremberg Bratwurst, small enough to fit through the keyhole of the locked cell!
Historically, alternatives to the death penalty included exile, indentured servitude, and galley slavery
Love it! Galley slavery has a particular appeal.
Galley slavery apparently did not exist as a criminal punishment in classical antiquity, contrary to the usual picture. When it starts, I think in the Renaissance, Mediterranean powers pretty much stop executing healthy male prisoner because there is now a more profitable use for them. I discuss it briefly in my _Legal Systems Very Different_. I conjecture that the change was due to the shift from naval warfare as hand to hand fighting on ships to warfare as exchanges of cannon fire. With the earlier model the last thing you want is a crew that is chained, unarmed, and hates you.
Damn it! Then Ben-Hur, the movie, is all wrong. But, of course, the incentives make sense.
People get overexcited about DNA testing. It's nice because it's easy on questions like "semen doesn't match" but those are rare cases on the wrongful conviction front. Most are just the jury simply got it wrong and ignore the evidence, ascribe innuendo as facts, or just didn't like the guy. DNA doesn't catch that.
For example plenty if people are locked up simply because they can't prove their innocence. Think all the people that were imprisoned, some executed, for SIDS. Or the guy whose wife legitimately falls downstairs right after they had a loud argument the neighbors heard and were in the middle of a messy divorce with infidelity and a history of domestic violence. Speech criminals are notoriously innocent, tons of people are imprisoned for conspiracies, threats, solicitations, etc they would never have acted on, they just wrote words that were misconstrued or evaluated as accurately predicting the future.
I'm not overexcited about DNA testing. I'm not even excited about it. It just nudges the odds a bit against Type I error. I have no clue how much.
One nice thing about DNA testing is that it can be used to reevaluate cases decided before it was available, giving us some information on the error rate in criminal conviction.
Re your last argument in favour of gun ownership, have you considered international comparisons? In Britain, for example, most guns are banned, but as far as I know the police are less powerful and more restrained than in the USA.
I’m an Englishman but I live in Spain, where guns are somewhat less illegal but not commonly owned; the police don’t seem overpowerful.
I’ve never owned a gun and never felt the need of one. Even if I managed to own a gun legally, if I shot anyone with it, I’d be treated as a criminal myself in most circumstances.
Interesting stuff, David...
Presumably, the more horrific the form of execution is, the better it would work as a deterrent? If, at the same time, that form of execution is very cheap and easy to perform, that would presumably strengthen the argument further?
I once went on a tour of Tallinn, Estonia. There, I saw a medieval tower that was allegedly used by the Danes (the rulers at the time) for executions. The tower was hollow and at least 30 ft. tall. The condemned person would simply be pushed into the tower from the top. Gravity would do the rest. The prospect of not dying straight away was probably more horrifying than the prospect of immediate death, since mere injury would leave the person mangled and in extreme pain for days among the rotting remnants of previous occupants. All in complete darkness and with no food or water provided.
However, in spite of deterrence and effectiveness, I am still against the death penalty because I consider it barbaric and more irreversible than a long prison sentence. People can be compensated (financially) for a long prison sentence that was passed in error but not for a death penalty passed in error.
They cannot be compensated for a long prison sentence passed in error unless the error is eventually discovered and it usually isn't.
That would be an interesting research topic. On the one hand, the longer the sentence, the more chance to investigate and correct errors, and the more chance of judicial sensibilities changing at least temporarily to recognize the errors. On the other hand, the longer since the sentence started, the less it holds any public interest.
There is a small chance that an error is discovered in the case of a long prison sentence so compensation is occasionally possible but in the case of an erroneous death sentence compensation is never possible after the sentence has been carried out.