In preparing some course material I came across this old post on the deterrent effect of the death penalty, discussing an article by John Donohue and Justin Wolfers, Uses and abuses of empirical evidence in the death penalty debate.
Nobody really cares much about the death penalty anymore—it’s kind of fallen off the political agenda—but back in the 90s it was a big deal, to the extent that people were still talking about it a decade later. I like the article by Donohue and Wolfers because they carefully discuss the difficulties of learning from observational studies, and in this case they pretty much give up and say that if you want to support or oppose the death penalty, you should make your decision based on something other than empirical evidence of any effect it has on deterring crimes.
Within the Donohue and Wolfers paper is a discussion of an article by Cass Sunstein and Adrian Vermeule, “Is Capital Punishment Morally Required? The Relevance of Life-Life Tradeoffs,” in which those two law professors argued:
Recent evidence suggests that capital punishment may have a significant deterrent effect, preventing as many eighteen or more murders for each execution. This evidence greatly unsettles moral objections to the death penalty, because it suggests that a refusal to impose that penalty condemns numerous innocent people to death. . . . a serious commitment to the sanctity of human life may well compel, rather than forbid that form of punishment. . . .
But is anyone truly innocent? I heard a rumor that we were all born in sin.
Donohue and Wolfers discuss that “as many eighteen or more murders” thing and give a convincing argument that it cannot be taken seriously. Their argument was convincing enough that . . . it convinced Sunstein himself, who later wrote an op-ed with Wolfers saying, “the best reading of the accumulated data is that they do not establish a deterrent effect of the death penalty.”
Anyway, while googling around and following up on all that, I came across this other article by Sunstein and Vermeule, from 2008, on conspiracy theories. They wrote:
Many millions of people hold conspiracy theories; they believe that powerful people have worked together in order to withhold the truth about some important practice or some terrible event. A recent example is the belief, widespread in some parts of the world, that the attacks of 9/11 were carried out not by Al Qaeda, but by Israel or the United States. Those who subscribe to conspiracy theories may create serious risks, including risks of violence, and the existence of such theories raises significant challenges for policy and law. . . .
There’s something kinda weird here given that the 9/11 attacks were indeed a conspiracy! The perpetrators were Al Qaeda, but it was still a conspiracy. I guess from the conspirators’ point of view the attacks were an act of war, and in war it’s considered ok to conspire and keep your plans secret. Actually, in business it’s considered ok to conspire and keep your plans secret too. One thing that makes a “conspiracy theory” a conspiracy theory is that the theory doesn’t go away even when the purported evidence for it falls apart.
In their 2008 article, Sunstein and Vermeule argue:
Because those who hold conspiracy theories typically suffer from a “crippled epistemology,” in accordance with which it is rational to hold such theories, the best response consists in cognitive infiltration of extremist groups.
“Cognitive infiltration,” huh? OK, we’ll get back to this.
But, first, the name Vermeule rang a bell. More googling revealed this post from legal journalist Mark Joseph Stern from 9 Nov 2020:
Here is a sampling of the wildly irresponsible disinformation promoted by Harvard Law Professor Adrian Vermeule in the days following the election.
A bit of googling revealed a couple more of these:
I find it a bit creepy that someone who is endorsing ridiculous and dangerous conspiracy theories was out there a few years ago suggesting “cognitive infiltration” of intellectual spaces.
Is Vermeule practicing what he preached and performing real-time cognitive infiltration of conspiracy groups, or is he performing cognitive infiltration of legal academia by promoting conspiracy theories about the election? Wheels within wheels, man.
Here’s how Sunstein and Vermeule conclude the abstract of their article:
Various policy dilemmas, such as the question whether it is better for government to rebut conspiracy theories or to ignore them, are explored in this light.
They don’t even seem to consider a third option, which is the government actively promoting conspiracy theories, as was done by the U.S. executive branch and much of Congress in the period Nov 2020 – Jan 2021, and has been done by the Russian government in their invasion of Ukraine.
What’s the point?
Why bring up these fifteen-year-old articles?
Is the point a gotcha on Sunstein: the Stasi-slurring law professor who got conned by Brian “Pizzagate” Wansink also got fooled by bad death penalty research also wrote a couple of pieces with someone who later supported election conspiracy theories? No, that’s not my point. Anyone who’s had a lot of collaborators will have some on the list who’ve done some iffy things in the past or will do so in the future.
No, I have a deeper problem with this whole libertarian-paternalism thing. Sunstein and Vermeule are law professors who have had appointive positions with the U.S. government, they’re promoting “cognitive infiltration,” and meanwhile they’re credulously pushing silly social science claims (“preventing as many eighteen or more murders for each execution”: this is the kind of claim that would be made by someone who knows how to divide but doesn’t understand uncertainty) and anti-democratic conspiracy theories.
My problem is not that they’re “hypocrites” but that they engage in a dangerous sort of top-down thinking, a world in which they get appointed to the government and then their job is to tell us all what to think.
A promoter of baseless conspiracy theories proposing that the authorities engage in “cognitive infiltration” of conspiracy groups. That’s some paternalism we could do without.
P.S. Paul Campos has more. Apparently some liberal Yale law school professor organized a symposium on a recent book by the election conspiracy theorist. The symposium begins with, “This week . . . we are hosting a symposium on Adrian Vermeule’s new book . . . We have assembled a terrific group of commentators . . . At the conclusion, Adrian will respond to the commentators,” and it concludes, “I thank Jack Balkin for his good offices in organizing the symposium . . . What is clear, for example, is that the framers’ legal ontology was simply not that of the modern positivist . . . In their modern incarnations in the 19th century, nationalism and liberalism were born twins, and often became the incestuous parents of legal positivism . . .”
It’s an interesting issue. On one hand, given political polarization and all, it’s cool that a bunch of political liberals is out there discussing the book of . . . not just a conservative, but an out-and-out spreader of ridiculous conspiracy theories. On the other hand, as Campos reminds us, these guys were flat-out trying to overthrown the U.S. government. Where do you draw the line? What’s next, a symposium on the legal theories of Osama bin Laden? I genuinely don’t know. For many years, Marxists were trying to overthrow various governments and undermine them from within, and academics are holding symposia on Marxism all the time. The September 11th and January 6th conspiracists were bad, sure, but I don’t know that they were more dangerous than Marxists. So far in history they haven’t done as much damage. And, just as lots of people on the left will say that Marxism has lots to offer and it shouldn’t be completely tied up with the bad things that actual Marxists did, similarly there are lots of people on the right who will say that fascism (or militaristic racial patriotism, or whatever you want to call it) has lots to offer too, and it shouldn’t be completely tied up with actual law professors who spread malicious conspiracy theories. So it’s complicated, and there’s no logic to asking Yale professors to stop promoting the work of right-wing conspiracy spreaders if we’re not going to ask them to stop promoting Marxism (for example here, which I got in a 2-second google search). Still, I get Campos’s point, and I hope they’re at least a bit bothered by what they’re doing with their “good offices in organizing the symposium.”
Or maybe just equip most citizens people with a good quality public education for free, with basic numerical and critical reading skills, like most western/northern European counties manage to do it, somehow. You still get people who believe in conspiracy theories, but far fewer.
Incidentally, violent crime rates (the kind for which some US states consider death penalties) are 1/5-1/10 of US rates in these countries.
I am sure there are many more birds for this stone (less poverty, higher value added jobs). But of course this is very mundane compared to the authorities infiltrating groups etc, and would make a far less interesting action movie.
Does your data on the effects of free high quality education on northern European’s lack of conspiracy theorizing/violence cover the entire previous century?
Andrew–
Did you mean Nov 2020-Jan 2021? (rather than Jan 2022)
Typo fixed; thanks.
I have a rule to not get ad hominem, but this time I can’t avoid breaking it. I was in a week-long workshop with Sunstein a couple of decades ago on the theme of law and behavioral economics. Sunstein was being Sunstein, decrying the heuristic shortcomings of the populace and calling for government procedures to override them in risk regulation. This was around the time he was writing his paeans to cost-benefit analysis.
My paper acknowledged risk perception issues, pointing out the best-supported behavioral quirk was cognitive dissonance avoidance, a.k.a. denial, which would lead those exposed to undue risks, especially in “chosen” venues like the workplace, to discount them. Its main point, though, was that the literature counterposing “expert” to “lay” risk perception was shot through with its own biases about the treatment of uncertainty. Although I wasn’t aware of it at the time, my target was NHST.
Participants took turns giving their papers. Some were more prominent than others, me probably at the bottom of the pile. But I was stunned at how completely Sunstein, who essentially presided over the whole affair, ignored every bit of my argument. I don’t think he even made eye contact the whole time.
If you want to get diagnostic about Sunstein, I think the place to look would be his penchant for teaming up with upfront conservatives. He seems to get a charge from being the liberal who can do joint work with AEI types, folks funded by the Olin Foundation, etc. It’s as if there’s an aura of seriousness and “facing up to the difficult questions” about the conservative crowd.
Peter:
Regarding your last point: Sometimes it seems that people can feel insulated by their political ideology.
For example, Sunstein’s a liberal, so if he takes a conservative position, he can feel that it ultimately has a liberal justification, because . . . he, Cass Sunstein, famous liberal, is taking that position.
You can sometimes see the same thing from the other direction. For example, James Heckman makes extravagant claims about the benefits of early childhood education programs. These are the kind of hopeful but unsubstantiated claims that a liberal would make, but . . . Heckman is a famous conservative, so he feels that he’s gotta be right on this one.
I think if you brought up the death penalty in any country except the USA and possibly China or Saudi Arabia you would find that people care quite a bit!
You are touching on the philosophical debate on conspiracy theories between particularists (crank conspiracy theories have specific problems that separate them from plausible conspiracy theories) and generalists (conspiratorial thinking is a flawed mode of thinking) https://www.tandfonline.com/doi/full/10.1080/02691728.2023.2173539?src=
Sean:
Sure, I agree that lots of people at an individual level care about the death penalty. What I meant is that, for whatever reason, it doesn’t seem like much of an active political issue. Back in the 1990s it was more of a live issue.
Attitudes on these issues can be tricky to measure, especially in countries where the question is theoretical. See for example this recent article from Yougov, Britons don’t tend to support the death penalty… until you name the worst crimes.
The reason isn’t hard to find. Both the number of executions per year and the number of death sentences imposed are way down from the nineties.
Conspiracy thinking: recognizing that there really are conspiracies in this world, the way I would identify a crank is to ask, if this were really a plot, how many and which people would likely know about it and have to keep their mouths shut? Most of the crazy conspiracies (climate change is a hoax, so is covid, or the vaccines are killing lots of people but Big Pharma is covering it up) require iron discipline from vast numbers of potentially knowledgeable people. Incidentally, it has always seemed to me that the biggest problem with the CIA-killed-Kennedy thing was all the people who would have know, not only about Oswald but also Ruby.
A deeper problem with crank conspiratorialism is that it tends to conflate all your enemies. That is, if you think there are multiple forces acting nefariously, bringing them together into a conspiracy is predicated on the assumption that what they have in common erases what separates them, allowing them to conspire together (which requires a lot of trust). Such a they-are-all-ganging-up frame is pretty much the definition of paranoia.
“Incidentally, it has always seemed to me that the biggest problem with the CIA-killed-Kennedy thing was all the people who would have know, not only about Oswald but also Ruby.”
I don’t know about that. Why couldn’t knowledge of a CIA plot to kill Kennedy and the subsequent involvement of Ruby have been closely held within a circle of maybe a dozen people? It wasn’t a particularly difficult or complicated set of events; it didn’t require special technology or equipment. It didn’t require the involvement of large numbers of people in the events themselves, nor in preparing for them.
I don’t hold to any particular theory about the JFK assassination. But my posterior on the Warren commission’s conclusions remains low. We are almost 60 years out from the events and the government still refuses to publicly release the unredacted proceedings of the investigation, notwithstanding a statute that required them to do so nearly a decade ago. At this point they cannot be protecting the identity of covert operatives or other operational matters. So what, exactly, are they hiding?
Can someone provide a definition of cognitive infiltration?
Vermeule is plenty mockable, but I think attempting to overthrow the government requires more than dumb tweets. Even REALLY dumb tweets. Trump had actual lawyers working for him attempting to change the outcome of the election, and I haven’t heard Vermeule was among them.
Wonks:
I agree that there’s no evidence that Vermeule was trying to overthrow the election. He was merely supportive of these efforts, not doing it himself, in the same way that an academic Marxist might root for the general strike and the soviet takeover of government but not be doing anything active on the revolution’s behalf.
There’s also the question of what Vermeule believed or believes about the ridiculous conspiracy theories he was spreading. I can see several possibilities: (1) he’s a true believer, (2) like the Fox news hosts, he knew the theories were B.S. but he thought it would be beneficial to him personally or politically to promote them, (3) he doesn’t really care if the theories have any truth to them, etc.
I guess this would’ve been a good line of questioning for that Yale law school professor to ask during that symposium discussed in the P.S. above. But these sorts of questions don’t always get asked. Just as there are probably not a lot of tough questions about Stalin and Mao that come up at Yale’s Marxism and Cultural Theory seminar.
While it may not be a political issue today, it is still a huge issue to many people, especially those injustly incarcerated. Too many people are waiting out their lives on death row due to other people’s bias, hatred and failures. Just look through https://innocenceproject.org/
Yes, thank you for pointing to the Innocence Project! Just because something is not debated on TV does not mean that “nobody cares about it” or that those who do care at “an individual level.” Often, what seems to be settled is settled because people organize behind the scenes to keep it that way.