Killing in good conscience: What's wrong with Sunstein and Vermeule's lesser evilaa argument for capital punishment and other human rights violations?

New Criminal Law Review

Volumn 10, Issue 2, 2007, Pages 210-238

  Blumenson, Eric ^a,b  

^a SUFFOLK UNIVERSITY   (United States)

^b WESLEYAN UNIVERSITY   (United States)

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[No Author keywords available]

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EID: 34248402085     PISSN: 19334192     EISSN: None     Source Type: Journal    
DOI: 10.1525/nclr.2007.10.2.210     Document Type: Article

References (151)

1. Cass R. Sunstein & Adrian Vermeule, Is Capital Punishment Morally Required? Acts, Omissions, and Life-Life Tradeoffs, 58 Stan. L. Rev. 703 (2005).
2. Id. at 709 (regarding moral obligation to reduce killings), 706 n.9 (citing several studies attributing a deterrent effect to capital punishment).
3. One study cited found that each execution deters eighteen murders on average. Hashem Dezhbakhsh et al., Does Capital Punishment Have a Deterrent Effect? New Evidence from Postmoratorium Panel Data, 5 Am. L. & Econ. Rev. 344 (2003),
4. cited in Sunstein & Vermeule, supra note 1, at 706 n.10. Sunstein & Vermeule cite other research studies and reports.
5. See H. Naci Mocan & R. Kaj Gittings, Getting Off Death Row: Commuted Sentences and the Deterrent Effect of Capital Punishment, 46 J.L. & Econ. 453, 453 (2003)
6. Joanna M. Shepherd, Deterrence Versus Brutalization: Capital Punishment's Differing Impacts Among States, 104 Mich. L. Rev. 203 (2005)
7. Joanna M. Shepherd, Murders of Passion, Execution Delays, and the Deterrence of Capital Punishment, 33 J. Legal Stud. 283, 308 (2004)
8. Paul R. Zimmerman, Estimates of the Deterrent Effect of Alternative Execution Methods in the United States, 65 Am. J. Econ. & Soc. 909 (2006);
9. Paul R. Zimmerman, State Executions, Deterrence, and the Incidence of Murder, 7 J. Applied Econ.. 163, 163 (2004),
10. cited in Sunstein & Vermeule, supra note 1, at 706 n.9.
11. The deterrent findings Sunstein and Vermeule rely on are questioned in John J. Donohue & Justin Wolfers, Uses and Abuses of Empirical Evidence in the Death Penalty Debate, 58 Stan. L. Rev. 791, 794 (2005).
12. Sunstein & Vermeule, supra note 1, at 749-50.
13. For other arguments for this point, see Tom Stacy, Acts, Omissions, and the Necessity of Killing Innocents, 29 Am. J. Crim. L. 481, 499, 508 (2002) (noting "an invisible and questionable reliance on the act/ omission distinction" in cases condemning lesser evil killings, and stating that "the inviolable nature of an innocent person's right to life does not furnish a basis for condemning necessity killing, at least when the actor bears responsibility for all of the available choices");
14. Gary A. Becker, On the Economics of Capital Punishment, Economists' Voice (March 2006), http://www.bepress.com/cgi/ viewcontent.cgi?article=1166&context=ev
15. Richard A Posner, The Economics of Capital Punishment, Economists Voice, (March 2006), www.bepress.com/ev, at 2.
16. Cass R. Sunstein and Adrian Vermeule, Deterring Murder: A Reply, 58 Stan. L. Rev. 847, 855 (2005).
17. Cf. Sunstein & Vermeule, supra note 1, at 731 ("[I]t is extremely desirable to prevent arbitrary or irreversible deaths, but this consideration is on both sides of the ledger.").
18. Sunstein & Vermeule, supra note 1, at 738.
19. See also id. at 749; 718-19 (stating that even if taken in its most sympathetic light, "a deontological objection to capital punishment is unconvincing if states that refuse to impose the death penalty produce, by that very refusal, significant numbers of additional deaths").
20. Id. at 705-06.
21. See, e.g., Eric Posner and Adrien Vermeule, Should Coercive Interrogation be Legal? 104 Mich. L. Rev. 671 (2006);
22. Charles Krauthammer, The Truth About Torture, Weekly Standard, Dec. 5, 2005, available at http://www.theweeklystandard.com/Content/Public/ Articles/000/000/006/400rhqav.asp
23. Alan Dershowitz, Preemption, A Knife that Cuts Both Ways 7 (2006) (arguing that the threat of terrorism and weapons of mass destruction may require a shift from "responding to past events to preventing future harms," and advocating an open-minded analysis of preemptive policies potentially including preventive detention, extrajudicial executions of terrorists, preventive war, and other methods);
24. Eric Posner, A Threat that Belongs Behind Bars, N.Y Times, June 25, 2006, at 12 (arguing for preventive detention without charge of suspected terrorists).
25. Cf. Michael Ignatieff, Lesser Evils, N.Y. Times Magazine, May 2, 2004, at 46 (stating that "[c]ivil libertarians don't want to think about lesser evils.... But thinking about lesser evils is unavoidable");
26. Sunstein & Vermeule, supra note 1, at 734 (arguing that "torture would be morally obligatory on certain factual assumptions").
27. Some persuasive examples include Carol S. Steiker, No, Capital Punishment is Not Morally Required: Deterrence, Deontology, and the Death Penalty, 58 Stan. L. Rev. 751, 755 (2005) (arguing that Sunstein and Vermeule's attempt to construe criminal punishment as a form of government regulation produces unjust punishment);
28. Owen Gross, Are Torture Warrants Warranted? Pragmatic Absolutism and Official Disobedience, 88 Minn. L. Rev. 1481 (2004).
29. For a critique of Steiker's argument, see Dan Williams, The Futile Debate over the Morality of the Death Penalty: A Critical Commentary on the Steiker and Sunstein-Vermeule Debate, 10 Lewis & Clark L. Rev. 625 (2006).
30. Sunstein & Vermeule, supra note 1, at 719.
31. Sunstein & Vermeule, supra note 4, at 855.
32. Sunstein & Vermeule, supra note 1, at 717.
33. See also id. at 718 (claiming that "our claims here do not depend on accepting consequentialism or rejecting the deontological objection to evaluating unjustified killings in consequentialist terms");
34. id. at 707 (arguing that "any deontological injunction against the wrongful infliction of death turns out to be indeterminate on the moral status of capital punishment if the death is necessary to prevent significant numbers of killings").
35. For the initial discussions of this hypothetical, see Philippa Foot, The Problem of Abortion and the Doctrine of Double Effect, 5 Oxford Rev. 15 (1967);
36. Judith Jarvis Thomson, The Realm of Rights 135-48 (1990). Most people also believe that breaking promises, violating rights, and other forms of mistreatment have a moral significance not reducible to the utility of doing so.
37. See generally John Rawls, Justice as Fairness, 67 Phil. Rev. 164, 194 (1958) (arguing that maximizing utility is limited to means that are fair);
38. Robert Nozick, Anarchy, State, and Utopia 28-33 (1974) (describing "side constraints" on maximization);
39. Thomas Nagel, Autonomy and Deontology, in Consequentialism and its Critics 142, 143-44 (Samuel Scheffler ed., 1988).
40. Of course, there are alternative deontological takes on the death penalty, including the view that certain killings require the death penalty as a matter of justice. See, e.g., Immanuel Kant, Metaphysics of Morals 98 (Mary Gregor ed. & trans., 1996) (arguing that capital punishment must be carried out even by a society about to disband, despite the lack of future utilitarian benefits for anyone). Today many death penalty supporters believe that retributive justice requires that the most egregious killers be executed. The Sunstein-Vermeule argument, and my critique, do not address that position; our argument is over the viability of deontologically-based abolitionism.
41. Nozick, supra note 12, at 28-33 (explicating this concept). The concept is sometimes labeled "consequentialism of rights," because as Philippa Foot notes, strictly speaking, utilitarianism is that version of consequentialism that defines the good exclusively in terms of aggregate welfare, "but it is of course possible also to count a theory as utilitarian if right action is taken to be that which produces 'good states of affairs,' whatever these are supposed to be; and then 'utilitarianism' becomes synonymous with 'consequentialism.'"
42. Philippa Foot, Utilitarianism and the Virtues, in Consequentialism and its Critics, supra note 12, at 224, 224-25.
43. See also Amartya Sen, Rights and Agency, 11 Phil. & Pub. Aff. 3 (1982).
44. Sen proposes a similar conception he calls a "goal rights system," which incorporates "rights in the evaluation of states of affairs [and gives] these rights influence on the choice of actions through the evaluation of consequent states of affairs." Id.
45. In this system, the fulfillment of rights is only one element of the goodness of the state of affairs, and therefore the violation of a right may make "the outcome worse both because of the violation of that right itself and because of the negative effect it has on other objectives...." Id. at 15-16.
46. Nozick, supra note 12, at 28-29.
47. The only indispensable marker of consequentialism is the view that the moral significance of a choice derives from its consequences, and one should do whatever will produce the best outcome, impartially considered. There are all sorts of instrumental questions about the relation between acts and their results that lead to a bewildering variety of forms of consequentialism (for example, would incessant instrumental calculating reduce utility?), and there are also a great many conflicting claims on what constitutes a good state of affairs (for example, does it include rights? Or satisfaction of an individuals self-destructive desires?). But what they all share in common is the view that the rightness and wrongness of actions must be traced to the goodness of the consequences they produce.
48. Sunstein & Vermeule, supra note 1, at 707.
49. The authors argue that "unlike individuals, governments always and necessarily face a choice between or among possible policies for regulating third parties. The distinction between acts and omissions may not be intelligible in this context, and even if it is, the distinction does not make a morally relevant difference." Id. at 721.
50. The deontological distinctions that limit the scope of our obligations - between acts and omissions, between intended and unintended consequences, between our own acts and those of others in response - place us in control of our lives; and most of the time, they correspond to our everyday intuitions about moral requirements. For a consequentialist, these distinctions are prima facie irrelevant to moral decisionmaking because what counts is only the resulting state of affairs, not distinctions in how they were produced.
51. Sunstein & Vermeule, supra note 1, at 725-26.
52. Nor can the state properly claim that it is not responsible for deaths resulting from its failure to deploy police in high crime neighborhoods because these deaths were not "intended" but only foreseen. Id. at 722.
53. Michael Walzer similarly argues that deontological duties must be modified in the case of political leaders. Michael Walzer, Political Action: The Problem of Dirty Hands, in War and Moral Responsibility 70 (Marshall Cohen et al. eds., 1974).
54. Sunstein & Vermeule, supra note 1, at 705, 720, 747 ("Where capital punishment of murderers is at issue, the taking of life is the only morally relevant action in the picture, and the state's taking of life is entirely commensurable with the crimes it deters.").
55. Becker, supra note 3, at 2.
56. Becker illustrates this by asking us to consider "a person with a long criminal record who holds up and kills a victim who led a decent life and left several children and a spouse behind. Suppose it would be possible to save the life of an innocent victim by executing such a criminal. To me it is obvious that saving the lives of such a victim has to count for more than taking the life of such a criminal." Id.
57. Sunstein & Vermeule, supra note 1, at 747.
58. Id. at 707-08, 718-19. Sunstein and Vermeule argue that "any deontological injunction against the wrongful infliction of death turns out to be indeterminate on the moral status of capital punishment if the death is necessary to prevent significant numbers of killings.... By itself, the act of execution may be a wrong.... But the existence of life-life tradeoffs raises the possibility that for those who oppose killing, a rejection of capital punishment is not necessarily mandated. On the contrary, it may well be morally compelled."
59. Id. at 707-08.
60. I say the authors "seem willing" to grant that state executions are as wrong as street murders, because they do refer in passing to the fact that executions are inflicted on people who are likely to be guilty. See, eg., id. at 716, 717.
61. In any event, this point is unnecessary to their argument and they do not press it, nor can they if they want to appeal to deontological abolitionists for whom the guilt of death row defendants does not justify execution. See also id. at 710 ("our argument is limited to the setting of life-life tradeoffs - in which the taking of a life by the state will reduce the number of lives taken overall");
62. id. at 738 ("If capital punishment strongly deters killings, and if the government that eschews capital punishment can fairly be charged with those killings, then the government's only choices are to kill more or to kill fewer; the deontological injunction might then be interpreted to require rather than to forbid capital punishment.").
63. Sunstein & Vermeule, supra note 4, at 850 ("[W]here governments are concerned, the distinction between acts and omissions is both conceptually obscure and morally irrelevant.").
64. See Sunstein & Vermeule, supra note 1, at 747-48.
65. See infra text accompanying notes 49-50.
66. James Griffin, Towards a Substantive Theory of Rights, in Utility and Rights 137, 140 (R.G. Frey ed., 1984).
67. See also Terrance C. McConnell, Moral Blackmail, 91 Ethics 544, 554 (1981);
68. Thomas Nagel, Libertarianism without Foundations, 85 Yale L.J. 136, 144 (1975) (reviewing Robert Nozick, Anarchy, State, and Utopia (1974)) (stating that "a general feature of anything worthy of being called a right is that it is not translatable into a mere assignment of disvalue to its violation").
69. This assumes that maximizing compliance with rights is lexically superior to all other interests. Lexically superior interests must be entirely satisfied before one can move on to an inferior interest. See John Rawls, A Theory of Justice 43 (1971).
70. Sunstein & Vermeule, supra note 1, at 710, 740-43.
71. To elaborate: According to Sunstein and Vermeule, no moral distinction can be drawn between the state's acts (state killings) and omissions (state failures to prevent killings), nor between the results the state intends (the inmate's death) and those it merely foresees (preventable private killings). Assuming Sunstein and Vermeule's argument applies not only to a state, but to parents and other actors who have similar affirmative duties to act, then my killing the only available organ donor is no greater moral wrong than my failure to prevent the foreseeable death of my untreated child.
72. Sunstein & Vermeule, supra note 1, at 710 (stating that "our argument is limited to the setting of life-life tradeoffs - in which the taking of a life by the state will reduce the number of lives taken overall"); 749 (arguing that "deontological injunctions against unjustified killing ... are of little help in these settings. Unjustified killing is exactly what capital punishment prevents"); 738 (arguing that, assuming capital punishment deters, "the government's only choices are to kill more or to kill fewer; the deontological injunction might then be interpreted to require rather than to forbid capital punishment").
73. Sunstein & Vermeule, supra note 1, at 747, 747 n.130.
74. Sunstein & Vermeule, supra note 1, at 729, 731.
75. For example, Albert Camus observed that "[f]or there to be an equivalence, the death penalty would have to punish a criminal who had warned his victim of the date at which he would inflict a horrible death on him and who, from that moment onward, had confined him at his mercy for months. Such a monster is not encountered in private life." Albert Camus, Resistence, Rebellion, and Death 199 (1961).
76. Carol Steiker argues that unlike a street killing, capital punishment includes an attribution of blame for heinous wrongdoing, is inflicted in society's name, and, as practiced in contemporary America, frequently includes a racial animus that is lacking in most private killings. Steiker, supra note 8, at 764-70.
77. Any one of these points is enough to show that the number of lives at stake is not the only moral issue involved in the decision whether to adopt a death penalty, contra Sunstein and Vermeule. See Sunstein & Vermeule, supra note 1, at 747 (claiming that "the taking of life is the only morally relevant action in the picture").
78. Sunstein & Vermeule, supra note 1, at 722-23.
79. See also id. at 720 (stating that the government "authorizes its agents to inflict capital punishment, but it does not authorize private parties to murder; indeed, it forbids murder").
80. Id. at 747.
81. Id. at 710, 723, 740-43.
82. See Thomas Nagel, Personal Rights and Public Space, 24 Phil & Pub. Aff. 83 (1995);
83. F.M. Kamm, Harming Some to Save Others, 57 Phil. Stud. 227 (1989);
84. F.M. Kamm, Nonconsequentialism, the Person As an End-in-Itself, and the Significance of Status, 21 Phil. & Pub. Aff. 354 (1992);
85. Warren S. Quinn, Actions, Intentions, and Consequences: The Doctrine of Doing and Allowing, 98 Phil. Rev. 287-312 (1989).
86. On a human rights conception, moral inviolability is a moral status that cannot be taken away so long as the person exists. The state should reflect this moral right by enacting certain kinds of legal inviolability. Unlike moral inviolability, legal inviolability is a status that can be repealed by the state or violated by others.
87. For another illustration that the minimize injustice calculation takes no account of the denial of human dignity that it itself generates, see Eric Posner & Adrien Vermeule, Should Coercive Interrogation be Legal? 104 Mich. L. Rev. 671 (2006) (arguing that a law allowing "coercive interrogation" would "do no more than symbolize the government's willingness to produce the greatest possible good overall").
88. Sunstein & Vermeule, supra note 1, at 747.
89. For discussion on the "catastrophic exception," including whether it undermines the non-aggregation principle, see infra notes 58-60 and accompanying text.
90. Nagel, supra note 38, at 93.
91. Joseph Raz makes a similar point in describing a common structure of many rights. "While it is true that rights are to benefits, the justifying benefit need not be the benefit one has a right to. It is often the freedom to control the fate of that benefit." Joseph Raz, Rights and Individual Well-Being, in Ethics in the Public Domain: Essays in the Morality of Law and Politics 44, 49 (1984).
92. For celebrated fictional accounts of the horrors that attend an exchange of human dignity for an extra measure of safety, see, e.g., Friedrich Dürrenmatt, The Visit (Patrick Bowles trans., 1990);
93. Shirley Jackson, The Lottery, in The Lottery 291 (1949);
94. and Stephen Spielberg's motion picture Minority Report (Twentieth Century Fox 2002).
95. Trop v. Dulles, 356 U.S. 86, 101-102 (1958) (finding the punishment of denaturalization, which constitutes "the total destruction of the individual's status in organized society," unconstitutional, and describing it as "a form of punishment more primitive than torture, for it destroys for the individual the political existence that was centuries in the development.... His very existence is at the sufferance of the country in which he happens to find himself").
96. Sunstein and Verrmeule, supra note 1, at 735.
97. Indeed, they argue, "not only is there no slope, there is no a priori reason to believe the ground slippery." Id.
98. To the objection that their theory would permit show trials to frame and convict an innocent person given sufficient benefits, they argue that we are highly unlikely to be confronted with such a scenario, but also say that moral intuitions that it is wrong to sacrifice one innocent to save more could be erroneous given the right cost-benefit ratio. Id. at 735-37.
99. See also 734 (accepting that their hypothesis entails that "torture would be morally obligatory on certain factual assumptions.... In our view, the ban on state torture reflects a use of the act/omission distinction in a context in which the distinction is not easy to defend"); 738 (stating that if executions deter, "then the government's only choices are to kill more or to kill fewer; the deontological injunction might then be interpreted to require rather than to forbid capital punishment"); 735 (asking, "if our argument is correct ... might not the failure to conduct show trials or to exonerate innocent people be a way of taking the lives of innocent people, too?").
100. Sunstein & Vermeule, supra note 4, at 856.
101. See, e.g., Sunstein & Vermeule, supra note 1, at 707 ("[I]n the abstract, any deontological injunction against the wrongful infliction of death turns out to be indeterminate on the moral status of capital punishment if the death is necessary to prevent significant numbers of killings."); 734-35 ("arguments about policies such as capital punishment and torture are hostage to what the facts turn out to show in particular domains");
102. Sunstein & Vermeule, supra note 4, at 856 ("If the consequentialist objection to the killing of innocents is 'unsatisfactorily contingent,' so be it; almost all consequentialist arguments are contingent, in the sense that they depend on (contingent) consequences.").
103. On the Sunstein-Vermeule argument, which denies any moral significance to the distinctions between state acts and omissions, and between its intended and foreseen consequences, the natural death of an untreated transplant candidate becomes a state killing if the state could have prevented it by ordering the harvesting of someone else's organs. Given the purported commensurability of such indirect state "killings" of transplant candidates with the state's intentional killing of a potential organ donor, the government's obligation must be to redistribute the body parts of individuals until it preserves the maximum number of lives possible. Strictly speaking, the transplant case and the other examples above do not raise a slippery slope problem. Slippery slope critiques show that what is intended as a limited principle can be too easily applied to situations far removed from its justification. The difficulty with the Sunstein-Vermeule rights-utilitarian principle is rather that it embraces the parade of horribles without regret.
104. These are not mutually exclusive categories, of course. As Joseph Raz notes, "a combination of private interest and the public good characterizes many of the fundamental civil and political rights and accounts for their centrality in our public culture." Raz, supra note 42, at 53 (1994).
105. Soobramoney v. Minister of Health 1998 (1) SA 765 (CC) (S. Afr.).
106. Francis Kamm captures this substantive conception of inviolability in her elaboration of what she calls the "Principle of Permissible Harm" (PPH). Rights that reflect the PPH "protect persons against some ways of maximizing the good; it gives them some inviolability. This inviolability is not absolute. It is limited qualitatively. (That is, the PPH permits some ways of harming.) It may also be limited quantitatively. (For example, the PPH might be overridden to save a million people.)." F.M. Kamm, Nonconsequentialism, in The Blackwell Guide to Ethical Theory 205, 215 (Hugh LaFollette ed., 2000).
107. European Convention on Human Rights, Art. 15. Non-derogable rights include the right to life and rights against torture and slavery. Id.
108. See also Restatement (Third) of the Foreign Relations Law of the United States §102, cmt. k (1986).
109. See, e.g., European Convention on Human Rights, Art. 9(1)-(2) (providing limitations on the freedom to manifest one's religious belief but not on freedom of conscience or on the freedom to change religion).
110. Sunstein & Vermeule, supra note 1, at 719.
111. Carol Steiker makes this point, see Steiker supra note 8, at 758 n.21, to which Sunstein and Vermeule respond that this "fact makes our argument a fortiori."
112. Sunstein & Vermeule, supra note 4, at 853. It is difficult to see how it can strengthen their claim; rather, it shows that something other than their minimization-of-killing policy is at work.
113. The forfeiture of rights justification for capital punishment is not available to the authors for reasons detailed supra notes 21-23 and accompanying text. Regarding the imminence of the killing to be prevented, Sunstein and Vermeule are perplexed why "the expansion of the temporal horizon [should] undermine the analogy," Sunstein & Vermeule, supra note 4, at 853, but surely that should instill concern that the state killing may not actually be necessary. At the least, when the projected chain of causation between the state's killing and its anticipated effect is distended in time and space, and relies heavily on influencing human volition, one's confidence in the consequentialist calculus should be greatly weakened.
114. Robert Nozick's deontological principles allow for force to be used to repel an imminent threat even when posed by an innocent. Nozick, supra note 12, at 34-35
115. (citing Kenneth R. Boulding, Conflict and Defense ch. 12 (1962)).
116. For a more detailed defense of this principle, see Judith Jarvis Thompson, The Realm of Rights 366-71 (1990);
117. for this principle's implications, see John Oberdiek, Lost in Moral Space: On the Infringing/Violating Distinction and its Place in the Theory of Rights, 23 Law & Phil. 325 (2004).
118. Most prominent contemporary anti-utilitarians, such as Rawls, Fried, Moore, and Nagel, also discern a limit to their deontological claims when the costs become extremely high. See Rawls, supra note 28, at 244-251;
119. John Rawls, Political Liberalism 355-56 (1993);
120. Charles Fried, Right and Wrong to (1978);
121. Michael S. Moore, Torture and the Balance of Evils, 23 Isr. L. Rev. 280, 328 (1989);
122. Nagel, supra note 38, at 85;
123. Thomas Nagel, War and Massacre, in Consequentialism and Its Critics, supra note 12, at 51, 54.
124. For further arguments in favor of a "catastrophic exception" to deontological rules, see Kai Nielsen, Against Moral Conservatism, 82 Ethics 219 (1972);
125. Michael Walzer, Political Action: The Problem of Dirty Hands, 2 Phil. & Pub. Aff. 160 (1973)
126. Charles Black, The Occasions of Justice: Essays Mostly on Law 89-102 (1963).
127. Michael Walzer, Just and Unjust Wars 253-54 (1977) (finding an exception for "supreme emergencies").
128. Moore, supra note 58, at 330.
129. See Sunstein & Vermeule, supra note 1, at 727, 709. The authors argue that "[d]eontological accounts typically recognize a consequentialist override to baseline prohibitions. If each execution saves an average of eighteen lives, then it is plausible to think that the over-ride is triggered, in turn triggering an obligation to adopt capital punishment."
130. Id. at 709. There is another way the catastrophic exception might be used to support capital punishment which the authors do not advance, and that is to deploy it against deontological constraints generally. On its face, the ticking bomb intuition offers reason to doubt that deontological prohibitions on torture or killing are absolute, but does not suggest that there should be no such deontological constraints at all. But because the catastrophic exception justifies killing someone for the collective benefit in some circumstances, one could argue that this fundamentally undermines the claim that an individual's life must be treated as inviolable rather than fungible. If so, doesn't this suggest that refusing to choose the lesser evil even in non-emergency conditions is a moral mistake? The question has theoretical merit, but given the badly self-incriminating answers offered by absolutist versions of both consequentialism and deontology, I believe the threshold deontology theory is unavoidable, or at least the most attractive option. Absolutist consequentialism may justify slavery, if the costs and benefits work out that way; absolutist deontology leads to Kant's famous view that one is obligated not to lie, even when it means divulging the whereabouts of someone to an enemy bent on killing him. Only a threshold theory instantiates the common intuition that at some catastrophic point grave harm should count, but in a way that does not destroy the respect for an individual's intrinsic value that rights provide. It is both coherent and closest to the truth, I believe, to hold that an individual's inviolability with regard to her life, body, and mind is of very great, but not infinite, moral weight. (As noted, supra notes 51-53 and accompanying text, there must also be distinctions drawn based on the interest involved, with the right to life being near absolute and the right to religious expression less so, for example.) Both deontological constraints and the catastrophic exception are part of a common-sense morality that is extremely resistant to displacement by theoretical constructs, and might be said to be a combination that is in "reflective equilibrium," in Rawls' model.
131. Sunstein & Vermeule, supra note 1, at 717.
132. Id. at 706-07.
133. See also id. at 717 ("If it is stipulated that substantial deterrence exists... consequentialists [will or should conclude] that capital punishment is morally obligatory [because it] minimizes killings overall.").
134. Id. at 715 (emphasis added). Sunstein and Vermeule say the following: [L]et us suppose, plausibly, that the evidence of deterrence remains inconclusive. Even so, it would not follow that the death penalty as such fails to deter... For capital punishment, critics often seem to assume that evidence on deterrent effects should be ignored if reasonable questions can be raised about the evidence's reliability. But as a general rule, this is implausible. In most contexts, the existence of legitimate questions is hardly an adequate reason to ignore evidence of severe harm.... [A] degree of reasonable doubt need not be taken as sufficient to doom a form of punishment if there is a significant possibility that it will save large numbers of lives.
135. id.
136. For a critique of the deterrence studies relied upon by the authors, see John Donahue and Justin Wolfers, Uses and Abuses of Empirical Evidence in the Death Penalty Debate, 58 Stan. L. Rev. 791 (2005)(finding that capital punishment is applied so rarely that its deterrent value cannot be reliably disentangled from changes in the homicide rate caused by other factors).
137. For other articles casting doubt on the reliability of deterrent research generally, see, e.g., Jeffrey Fagin, Franklin Zimring, & Amanda Geller, Capital Punishment and Capital Murder: Market Share and the Deterrent Effects of the Death Penalty, 84 Texas L. Rev. 1803 (2006) (reporting research findings that "the marginal deterrent effect of the threat of execution on those cases at risk for such punishment is invisible");
138. Richard Berk, New Claims about Executions and General Deterrence: Deja Vu All Over Again? 2 J. Empirical Legal Stud. 303 (2005);
139. Robert Weisberg, Death Penalty Meets Social Science: Deterrence and Jury Behavior Under New Scrutiny, 1 Ann. Rev. L. & Soc. Sci. 151 (2005).
140. In any event, the high deterrent values cited in the Sunstein-Vermeule argument must be construed carefully, lest they suggest that the immediate execution of the 3300 inmates on death row would eliminate all American murders in the short term, which now numbering approximately 17,000 per year. See Criminal Justice Project of the NAACP Legal and Educational Defense Fund, Death Row USA (Summer, 2006), available at http://www.deathpenaltyinfo.org/DRUSA%20Summer%202006.pdf
141. The Disaster Center, United States Crime Rates 1960-2005, available at http://www.disastercenter.com/crime/uscrime.htm.
142. On the brutalization scenario, see William J. Bowers and Glenn L. Pierce, Deterrence, Brutalization, or Nonsense: A Critique of Isaac Ehrlich's Research on Capital Punishment 35 (1975) (unpublished manuscript, on file with author);
143. Joanna M. Shepherd, Deterrence versus Brutalization: Capital Punishment's Differing Impacts among States, 104 Mich. L. Rev. 203 (2005).
144. Always aiming at maximization may be self-defeating, so many consequentialists describe their doctrine as a "criterion of rightness" and not a "decision procedure." See, e.g., David O. Brink, Utilitarian Morality and the Personal Point of View, 83 J. Phil. 417, 438 (1986);
145. Campbell Brown, Consequentialise This 4 (June 1, 2004) (unpublished manuscript, on file with author) (arguing that "consequentialism ... need not recommend that agents adopt a form of deliberation that would involve their directly aiming at the best outcomes"). They recognize that utility may be better served by a population whose actions exemplify certain virtues of character than one whose actions often derive from hard-headed rational analysis. There may be more utility produced by people conditioned to respond in Kantian ways to certain morally-significant situations than people who try to calculate the most beneficial course at every moment.
146. See, e.g., John C. Harsanyi, Morality and the Theory of Rational Behavior, in Utilitarianism and Beyond 39, 59-60 (Amartya Sen & Bernard Williams eds., 1982) (advocating on rule-utilitarian grounds "social institutions which establish a network of moral rights and of moral obligations" that are not to be violated despite the immediate social utility of doing so).
147. See also Kamm, supra note 38, at 389.
148. For example, John Stuart Mill argued that capital punishment could not be justified unless "it were certain that no other punishment or means of prevention would have the effect of protecting the innocent against atrocious crimes." 13 John Stuart Mill, The Collected Works of John Stuart Mill 474 (Francis E. Mineka ed., 1963).
149. Stephen Nathanson suggests a related but different "bend over backwards" principle, in which serious pro-active efforts must be made to develop a non-wrongful, non-injurious alternative, leaving the wrongful conduct as a last resort; only then does the actor show proper respect for, and acknowledge the humanity and value of, those who would be harmed. Stephen Nathanson, Can Terrorism Be Morally justified, in Morality in Practice 602, 608 (James Sterba ed., 7th ed. 2004).
150. Sunstein & Vermeule, supra note 1, at 733 (stating that "a key assumption of the strict scrutiny view is that the alternative policies are substitutes for capital punishment. Yet they would likely turn out to be complements instead"). They also justify limiting the policy alternatives to "the feasible set," because even if there are crime-reducing policies that might eliminate the life-saving benefits of capital punishment, they are not ones Americans are likely to embrace, and " [n]o sensible principle of policymaking bars regulators from adopting a clearly desirable practice, unless and until they show that all other potential projects are inferior."
151. Id.