This is written in response to the recent article in India Real Time on the rising clamour for Capital Punishment in the wake of the barbaric rape of and assault on a young 23 year old girl in New Delhi. As the headline suggests; the gist of the argument is that Capital Punishment (the focus of the article) is a flawed answer to Rape and some reasons why, are detailed in the body of the text. I disagree with the author’s conclusions as also with the characterization of Capital Punishment as flawed reasoning.
A. ‘The data is counterfactual. What are the proponents of capital punishment comparing to when they say the death penalty will be a deterrent?’ That seems like a fair-enough point. But there are few answers either to what the author is comparing her energetic claim with. The article cites two studies from the US; one in support (Ehrlich) and the other (Donahue), not in discord; but with a carefully worded conclusion; ‘found it impossible to conclude with any certainty that capital punishment is a deterrent’. This latter study would have served the purpose of the article, and/or of its author, better if it had concluded the corollary – that it is possible to conclude with certainty that capital punishment is not a deterrent. These two conclusions, most will agree, are entirely different things.
Reading the study’s abstract from the link provided; we learn:
1. That this was conducted to study the inferences of ‘other’ studies that had concluded a substantial deterrent effect of capital punishment
2. That the metaanalysis was undertaken to verify the veracity of the conclusions of those other studies. It reviews the inferences of others and is not designed to study the critical question of independently assessing capital punishment as, or as not, a deterrent. Other study conclusions are put to the test; not the deterrent ability of capital punishment.
3. In conclusion, the study ‘found it impossible to conclude with any certainty that capital punishment is a deterrent’ because the other studies suffered from poor study design and I quote: ‘short samples and particular specifications may yield large but spurious correlations’.
B. There are a couple of other reasons the author adds to bolster her case.
1) ‘the morality of fighting barbarism with barbarism is complicated and that every country in the West has abolished it except the US’. I am deeply uncomfortable with the portrayal of a demand for the death penalty, as an option on the table, for the crime of rape as, ‘barbaric’. If this demand came from the victim or her family, would anyone dare to deem it ‘barbaric’? Morality being a deeply subjective issue; it is prudent to be cautiously restrained with its assessment especially in the face of grave tragedy and, 2) ‘there might be emotional satisfaction to the victims and their families’. That possibility is quickly refuted by the author because she has ‘doubts’ on this score! There is also a reference elsewhere to common sense. All assessments of common sense, morality and emotional satisfaction are subjective and informed by the biases of all participating sides.
After spending time reading this article, given that it has great visibility due to the platform of its publication; are we convinced to some measure (any measure) of the reasons for the flawed logic of using capital punishment as a deterrent? The answer is a clear, no.
Crime and culture are deeply intertwined. While the study quotes the Western experience with deterrence; it ignores that of Eastern nations completely. What, for example, is the deterrence ability of capital punishment under Sharia Law in progressive and theocratic Islamic Nations? The impact of capital punishment on behaviour, societal shaming and ostracization cannot be ignored. The law is formulated taking into account socio-cultural circumstances unique to the people of the land. Just as human behavior in its normal and perverse forms falls within a spectrum of possibilities; so too does the application of the law. The law is not blanket applied to every case of crime based on its classification. The judicial prudence of the judge is applied to the specific circumstances of each case. Measures to rein in the abhorrent rape statistics include a plethora of suggestions ranging from the cultural, the familial, police and security reform and yes, judicial reform. While we wait for behavioural and cultural reform; the last two can be instituted with greater immediacy and have the capability (when strictly enacted) of influencing and enforcing behaviour. The endemicity of rape forces us to revisit and rethink the law.
Before we reach the question of death penalty, the law needs to be settled on rape per se. The marriage between the criminal law (under which rape falls) and evidence act is not complete. There are too many loopholes that do not cater to the Indian sensibilities. This has been the reason why so many people even when convicted have been able to be free birds. The law needs to be clear, concise, without any doubt on this subject. Drafting the laws keeping the principle of natural justice in mind is an extremely difficult thing.
I feel this is the need of the hour in our evolution as a society. A simple law that is deterrent without awarding capital punishment. There is no denying nothing can remove the pain, shame, loss of pride, loss of self confidence as well as the social stigma when such a crime id perpetrated. Even capital punishment will not. More than awarding death penalty, there is a greater need to evolve as a society, to demand and receive governance, to demand and see implementation of law across all strata of society. A greater need is to have a system in place that caters to rehabilitation of the victim, emotionally, psychologically, medically, socially in every which way possible. Law is an ass, crooked criminals often use it as a horse to get away.
Thank you for stopping by once again Kapil, and for weighing in with your ever-thoughtful comments. I am greatly appreciative of your effort to both read and comment, and apologise for the delay in my response.
I agree with you whole-heartedly on two points. One, that the evidencing of rape is an uphill task. Indeed; something as obvious as rape by assault (as happens often in India and contrasted with the marital/date rape that’s seen more in the West) should not be hard to nail down. And two, that the rehabilitative effort of assaulted women is appallingly inefficient; we wouldn’t be wrong if we said it is non-existent.
If I take the wide angle view; there are two aspects of rape. One is the event itself and the other is the messy knot of everything that happens post-event ( medico-legal record, treatment, rehabilitation alongside the legal process, survival without ostracization). The latter is a hard exercise, an almost impossible-to-bear sort of experience for the lady and her family. So harsh that in many cases, they take recourse to drastic steps like suicide. We therefore have two beasts to deal with. Quite clearly the deficit of the latter makes it all the more urgent and imperative to ensure that the assault itself doesn’t happen in the first place. To do that; we need something that serves as a stringent deterrent.
What can we do with the former? Prevention strategies aimed at culture which involve both men and women and, police-judicial reform.
What can we do with the latter? Standardize medical determination of rape wherein the med report is available within 24 hours, is itself taken as a the first line of evidence pre-empting cross-examining the lady and DNA evidence to be submitted within a week; medico-legal aspects to be dealt with by only trained women personnel (no lady who has faced such a grievous assault will be ever put through questioning by men); sensitive aspects of medico-legal record to be conducted in the presence of the bare minimum number of people needed *with and in* the presence of the family of the lady and judicial reform for speedy and effective resolution and media regulation.
As you rightly said; we are at an evolutionary stage. Sadly though the evolutionary timelines to a more progressive society and to medico-judicial-police reform have different rates of speed. To my mind, much as it goes against my grain, a severe deterrent is needed to accelerate mind-set change. An egregious crime needs an egregious punishment. Sometimes, we must undertake the tough responsibility of biting the bullet in order and insist on action that our own core selves are in dissonance with; in order that others never suffer this brutality again.
Again thanks much for your comments; I really forward to these exchanges with you.
Death Penalty Deterrence:
Rebuttal to Donahue and Wolfers (D&W)
RE: Uses and Abuses of Empirical Evidence in the Death Penalty Debate, John J. Donohue & Justin Wolfers, Vol 58, Issue 3, Stan. L. Rev. 791 Article, Dec 2005
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“Had (D&W’s) paper been subjected to the normal blind peer review process in an authoritative economic journal it is highly unlikely that it would have survived intact , if at all. ”
“D&W’s unsupported claim that the appropriate variable in studies of deterrence using these borrowed tools from portfolio analysis is the amount or level of homicides in the respective jurisdictions. This claim is without theoretical basis or empirical precedent. ”
“With regard to DW’s specific comments on our two papers (Cloninger & Marchesini, 2001 & 2006) we find very little requiring defense. Implicit in their critique, and explicitly stated in private communications, DW were able to replicate our results based on data we furnished, at their request, as well as data they acquired independently. ”
“(D&W’s) Quibbling over numerous and sometimes meaningless statistical issues obscures the picture painted by the cumulative effect of the nearly dozen studies published since the turn of the 21st century.”
“Using differing methodologies and data sets at least five groups of scholars each working independently (and often without knowledge of the others) have arrived at the same conclusion, there is significant and robust evidence that executions deter some homicides. While there may be merit in some of (D&W’s) specific criticisms, none addresses the totality of the collection of studies. The probability that chance alone explains the coincidence of these virtually simultaneous conclusions is negligible.”
“Reflections on a Critique”, Dale O Cloninger and Roberto Marchesini, forthcoming Applied Economic Letters (likely 2007)
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(2006) ” . . . D&W do not even report Zimmerman’s “preferred” results correctly, and then proceed by carrying on this error throughout the remainder of their critique.”(pg8)
“It is shown that D&W made a number of serious misinterpretations in their review of Zimmerman’s study and that none of the analyses put forward by D&W (which ostensibly refute Zimmerman’s original results and conclusions) hold up under scrutiny. (pg8)
” . . . D&W’s method of interpreting their results is not consistent with that proscribed by the received econometric literature on randomized testing . . .”. “As such, D&W’s interpretation of their randomized test in itself does not (and cannot) reasonably lead one to conclude that Zimmerman’s estimates suggesting a deterrent effect of capital punishment are spurious.” (pg12)
” . . . D&W do not appear to have interpreted their randomization test in any meaningful fashion.” (pg14)
” . . . (Donohue and Wolfers’ “D&W”) criticisms of Zimmerman’s analysis are misrepresentative, moot or unsupportable in terms of the analyses they perform.” “It is shown that Zimmerman’s published empirical results, or the conclusions drawn from them, are not in any way refuted by D&W’s critique.” (pg 3)
“This later estimate suggests that each execution deters 14 murders on average . . .”. (pg 7)
“Of course, (D&W’s) omission tends to create a strong impression that Zimmerman’s analysis ‘purports to find reliable relationships between executions and homicides’, when his actual conclusions regarding the deterrent effect of capital punishment are far more agnostic.” (pg10)
” . . . the state clustering correction employed by D&W may not be producing statistically meaningful results.” (pg16)
“And while D&W once lamented that recent econometric studies purporting to demonstrate a deterrent effect of capital punishment yield ‘heat rather than light’, as shown herein, their criticisms of Zimmerman (2004) tend to yield ‘smoke rather than fire’.”(pg26)
Zimmerman, Paul R., “On the Uses and ‘Abuses’ of Empirical Evidence in
the Death Penalty Debate” (November 2006). ssrn(dot)com/abstract=948424
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(2006) “(D&W’s) analysis shows that attempts to make the deterrence effect disappear are ineffective.” (p 16)
— The criticism of our studies is flawed and does not effect the strength of the measured deterrent effect.
— Existence of the death penalty, in law, has a statistically significant impact on reducing murders. (p 23)
— Execution rates show significant impact in reducing murders. (p 13 & 23)
— Death row commutations, and other removals, increase murders. (p13 & 23)
“The Impact of Incentives On Human Behavior: Can we Make It Disappear? The Case of the Death Penalty”, Naci H. Mocan, R. Kaj Grittings, NBER Working Paper, 10/06, www(dot)nber.org/papers/w12631
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Abstract: The academic debate over the deterrent effect of capital punishment has intensified again with a major policy outcome at stake. About two dozen empirical studies have recently emerged that explore the issue. Donohue and Wolfers (2005) claim to have examined the recent studies and shown the evidence is not robust to specification changes. We argue that the narrow scope of their study does not warrant this claim.
2007 – Hashem Dezhbakhsh & Paul H. Rubin
From the ‘Econometrics of Capital Punishment’ to the ‘Capital Punishment’ of Econometrics: On the Use and Abuse of Sensitivity Analysis (September 2007). Emory Law and Economics Research Paper No. 07-18, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1018533
2010 Applied Economics
“From the ‘econometrics of capital punishment’ to the ‘capital punishment’
of econometrics: on the use and abuse of sensitivity analysis”
Hashem Dezhbakhsha; Paul H. Rubina
a Department of Economics, Emory University, Atlanta, GA 30322, USA
First published on: 21 October 2010
I can’t believe I missed responding to this. Please accept my apologies for the delay/ it was always on top of mind. To the extent that I thought I’d actually done it.
Thank you for taking the trouble to add so much detail to the dissent. Many others have read your comment and shared it too on T.
The system of judicial punishment has been developed for various reasons. To a layman like me, the following reasons stand out:
1. Revenge: Even a child stomps on the earth where it fell and hurt itself… it’s among the most basic instincts and valid needs.
2. Deterrence: It works to a great extent, whatever the liberals like Rupa Subrabamya would like us to believe. A rapist thinks that he will not be caught or punished, or even in the latter case, the punishment will be light. This belief needs to be broken, he must fear for his life when he thinks of doing such things.
3. Quarantine: A rogue elephant, a rabid dog, or a man-eating tiger is to be killed. It is dangerous for the society to allow them to roam freely. There is no alternative if we want to have a society free of fear and harm. This is why criminals are jailed or hanged (removed from the society), depending upon the offence.
Lastly, I would like to add this. The girl’s intestines were badly damaged. How? Just due to forced sex? No. A rod was inserted. Would such barbarians understand the language or norms of civil society? Shathe shathyam samacharet – goes the Sanskrit proverb (deal the bad people in their own coin). Maybe Rupa Subramanya should read Gita…there are times when killing is not only desirable, it’s the right thing to do.
Thank you for taking the time to read and for leaving a comment. I am sorry for the delay in my response/ have no excuses.
My focus is largely on deterrence; the role of the other two is very subjective and falls under the umbrella of emotions that we can’t legislate on.
The question we are all still tossing around (it is a month now): How can we within the norms of a progressive legislature, effect a deterrent that actually does the job? To my mind, an egregious crime needs an extraordinary bending of the present law in order that justice is done and that a precedent with deterrent potential is established firmly in the consciousness of the public.