Death Penalty & Efficiency

This grassroots Anti-Obama ad is floating around the dreck of the far right-wing. It says Obama may be soft on terrorism because he opposed expanding the Death Penalty while a State Senator in Illinois. This comes after Huckabee’s Romney Attack Ad that he made (but didn’t air except for reporters) which included the bizarre bullet point that Romney had “No Executions.”

So the Death Penalty is back as a macho proving ground. Between these items and Ed’s post on the recent Death Penalty Supreme Court hearings got me wondering – why do we have the Death Penalty? There are a number of complaints against it – both that there are procedural problems with how it gets assigned to it is unjust for the government to take the life of one of its citizens. Why does the government keep it around?

Forget the disciplinary society for a second and let’s look at it through an economic lens: most of it’s defenders say it has a deterrent effect. This strikes me as highly unlikely. It’s tough to prove statistically: The number of murders vary quite a bit year to year, but the number of executions don’t. Most of executions happen in Texas, so you are going to have a weird bias in the data. Next is that there are all kinds of weird incentives – “if I know I’m getting the chair, they aren’t going to take me alive” Bonnie and Clyde stuff.

Indeed the weirdest thing is that having the Death Penalty keeps a lot of critical eyes on the criminal justice system in this country, eyes the government may not want there. Law students don’t dig up the records of people who pleaded guilty to manslaughter and see how many of their PDs were drunk or asleep or incompetent. They do it all the time for those on death row. Something about knowing how shady many of the capital cases look when examined, knowledge that makes one wonder how well-clothed the emperor is, makes me think there must be a really good reason to keep it around.

If I had stayed in graduate school I was going to write a paper about having the Death Penalty as an option for when the prosecutor plea bargains even when the prosecutor would prefer not to use it – they find it inhumane, but the defendant doesn’t know that. Luckily someone smarter than me has already published that: Does the Threat of the Death Penalty Affect Plea Bargaining in Murder Cases?. Solid paper, all the econometrics are in order.

Conclusions: (a) Having the Death Penalty has no net effect on plea bargains for murder. (b) Having the Death Penalty causes defendants to get worse prison sentences when they do, and are less likely to plea to a lesser charge. (c) There is no effect on non-capital crime plea bargaining – say robbery – for having the Death Penalty (ie having the Death Penalty around just means that PD are underfunded, for example). Implication: Plea bargains happen at the same rate, however the defendant doesn’t get additional concession for confessing outside of not getting executed.

Plea bargains are what keeps our criminal justice system humming at peak efficiency – see Courtroom 302 on this. Fear of the Death Penalty will cause defendants to plea out on the original charge, keep the closure statistics high without making the prosecutors look like they are compromising on the justice front (If all the murderers pleaded out to manslaughter – similar to how it is done for robberies – there would be an insane amount of blacklash from papers and community groups). This works even if they have no intention of using the Death Penalty – as long as a few defendants are executed here and there to keep the threat credible. The Death Penalty is less a weapon in the war on crime than some oil to keep the machine running at peak capacity. And of course, having the Death Penalty on the books (and your favorite Law&Order cops saying “confess now and you can save yourself the needle!”), even if it is unlikely to ever be used, can get someone innocent to confess to a crime he didn’t do.

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2 Responses to Death Penalty & Efficiency

  1. Ed 2.0 says:

    I think the death penalty is a minor public policy issue. I don’t have much problem with the death penalty. I think a State justifiably can decide that the only penalty for certain heinous crimes is death. Certainly, the US hasn’t perfected its procedural protections for it.

    More important to me is an issue of providing competent defense attorneys for criminal defendants.

    It’s simple to say that public defenders are overworked. They are. But defendants who hire private attorneys often lack knowledge as to that attorney’s skill. Many private attorneys slow the wheels of justice by filing frivolous motions and making poor arguments, while making a show of it. They then bill a defendant more than they should, while not creating value for their client.

    Most sad, I’ve seen, is the snare of drug crimes. These defendants get a misdemeanor possession charge, go on probation, fail, and go to jail for months. Their drivers license is suspended, and they get caught driving.

    The drugs aren’t a gateway, per se. But they can retard a person’s maturity, especially those who are poorly educated and lack solid role models. There are only so many hours in a day, and those who spend time taking drugs aren’t necessarily helping their condition. These defendants, often mothers, can lose their children, which creates a vicious cycle.

    I’m torn between my libertarian instincts, and my dislike of libertarians here. I think that decriminalization of drugs like marijuana might take considerable strain off the criminal justice system and people both. I also am suspicious of libertarians who claim that they smoked marijuana once and are fine (N.B. those people often have PhDs from MIT and think they once talked to a girl on IRC; Libertarians are either basement-dwellers or ultra-cosmopolitans like Tyler Cowen, but rarely are in between).

  2. Ed says:

    Jello Biafra said it best: politicians love the death penalty because it makes a bunch of candy-asses look like tough guys.

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