Death penalty debate

The debate over the utilitarian costs and benefits of the death penalty has been swirling in the blogs (and among nerdy news junkies) over the past couple days, largely fueled by recent studies reported in this NYT article. Several studies seem to indicate that the death penalty has a deterrent effect . . . except that critics say maybe the studies aren't meaningful . . . and the only thing everybody can agree on is that it's complicated and the causation is extremely difficult to isolate from a variety of influential (but tangential) factors. As occasionally occurs when I'm doing some research to write about something, I happened across a post that nearly exactly encapsulates my view. Jack Balkin of Balkinization (and, almost as notably, the Yale Law faculty) writes,

There seems little doubt -- to me at least-- that the death penalty, if applied consistently and predictably enough (so that there is a real chance that it would be applied to a potential criminal defendant) will deter all sorts of crimes. It will deter murder. It will deter embezzlement. It will deter jaywalking. The fact that various economic studies suggest this correlation should hardly startle anyone. . . . Even if we grant that the death penalty deters, [however,] surely the appropriate question is whether the application of the penalty is worth the gains that accrue from it. If it is cruel and unjust, we would not apply it even if it saved lives.

I think this is precisely correct. The debate over the death penalty should not be one of utilitarian calculus, partly because it's virtually impossible to really determine those outcomes, but mostly because it's a *values* issue. In general I'm somewhat less pleased with public policy on a utilitarian basis than some of my ideological peers (though obviously most politics are thereupon founded), and strongly so regarding capital punishment.

Now, here's the part that makes me a little afraid to venture into the comments: I'm in favor of the death penalty (morally, at least). I don't really care if it's a deterrent -- though if for some reason it added to crime/murders, that would have an effect on my view -- and I don't think it's cruel and unusual. I *do* think there are some crimes for which the only appropriate societal punishment is death. Some criminals deserve death, and, indeed, make a choice to be killed in their perpetration of certain crimes. (In practice, conversely, I think there are all kinds of problems with the processes and administration of the death penalty, but that's a separate thing.)

As Balkin says,

[A]rguments about deterrence are a sort of sideshow that allow people to avoid talking about these larger questions with the hope that they can solve the issue by the application of generous amounts of social scientific studies. The more important question is what the death penalty means morally to its supporters and to its opponents. . . . The question of whether [certain criminals] deserve death -- and whether it is morally just for the state to administer death -- is separate from the question of whether the threat of death would deter them.

Indeed.