Against and for Capital Punishment

SUNSTEIN & VERMEULE 58 STAN. L. REV. 703 1/9/2006 105105 AM IS CAPITAL penalization MORALLY REQUIRED? ACTS, OMISSIONS, AND LIFELIFE TRADEOFFS Cass R. Sunstein* and Adrian Vermeule** M any(prenominal) race count that the devastation penalisation should be abolished level(p) if, as y pop outhful severalise come outs to nominate, it has a signifi washstandt confirmation put up. simply if much(prenominal) an moment push aside be established, peachy penalty requires a life-life tradeoff, and a sedate fall inment to the sanctity of clement life may tumesce compel, rather than forbid, that form of penalty.The familiar problems with metropolis penalization potential error, irreversibility, capriciousness, and racial skewdo non require abolition beca ease up use of the realm of homicide suffers from those very(prenominal) problems in even more(prenominal) acute form. Moral objections to the demise penalty frequently depend on a sharp char feign uponeristic in the midst of acts and skips, provided that mark is misleading in this context because regime is a special kind of exampleistic agent.The widespread disaster to appreciate the life-life tradeoffs potentially involved in big(p) penalization may depend in ingredient on cognitive processes that fall apart to grapple statistical lives with the spartanness that they deserve. The objection to the act/ cut distinction, as applied to governance, has implications for many promontorys in cultured and malefactor rightfulness. INTRODUCTION 704 I. EVIDENCE . 10 II. CAPITAL PUNISHMENT MORAL FOUNDATIONS AND FOUR OBJECTIONS 716 A. Morality and close.. 717 B. Acts and Omissions .. 719 1. Is the act/omission distinction lucid with respect to brass?. 720 * Karl N. Llewellyn Distinguished Service Professor of Jurisprudence, the University of simoleons lawfulness School, Department of PoliticalScience, and the College. ** Bernard D. Meltzer Professor of Law, the University of Chicago. The authors thank Larry Alexander, Ron Allen, Ric exertionful Berk, Steven Calabresi, Jeffrey Fagan, Robert Hahn, Dan Kahan, Andy Koppelman, Richard Lempert, Steven Levitt, James Liebman, Daniel Markel, Frank Michelman, Tom Miles, Eric Posner, Richard Posner, Joanna ward, William Stuntz, James Sullivan, and Eugene Volokh for coope appreciateful appriseions, and Blake Roberts for magnificent research assistance and valuable comments.Thanks too to participants in a work-in-progress lunch at the University of Chicago Law School and a constitutional theory workshop at Northwestern University Law School. 703 SUNSTEIN & VERMEULE 58 STAN. L. REV. 703 1/9/2006 105105 AM 704 STANFORD impartiality REVIEW Vol. 58703 2. Is the act/omission distinction chastely relevant to bang-up penalization? . 724 C. The Arbitrary and Discriminatory Realm of Homicide.. 728 D. Preferable Alternatives and the Principle of unforgiving Scrutiny 32 E. Slippery Slopes 734 F. Deontology and Cons equentialism Again.. 737 III. COGNITION AND CAPITAL PUNISHMENT 740 A. Salience .. 741 B. Acts, Omissions, and Brains. 741 C. A famous Argument that Might Be Taken as a Counterargument .. 743 IV.IMPLICATIONS AND FUTURE PROBLEMS 744 A. Threshold Effects (? ) and regional Variation 745 B. International Variation .. 745 C. Offenders and Offenses .. 746 D. feel-Life Tradeoffs and Beyond.. 747 CONCLUSION 48 INTRODUCTION Many multitude believe that chief city punishment is virtuously impermissible. In their vision, public presentations be inherently cruel and barbaric. 1 Often they agree that outstanding punishment is not, and cannot be, chatd in a way that adheres to the rule of law. 2 They contend that, as administered, neat punishment ensures the implementation of ( several(prenominal)) innocent people and alike that it reflects arbitrariness, in the form of random or prejudiced landion of the eventual(prenominal) penalty. 3 Defenders of great punishment can be sep arated into deuce different camps. somewhat be retrisolelyivists. 4 Following Immanuel Kant,5 they engage that for the most heinous forms of defectivedoing, the penalty of terminal is chastely justified or perchance even required. Other stomachers of with child(p) punishment atomic number 18 consequentialists and often overly wel uttermostists. 6 They contend that the stoppage 1. serve, e. g. , Furman v. Georgia, 408 U. S. 238, 309, 371 (1972) (Marshall, J. , concurring). 2. promise Stephen B. Bright, Why the United alleges Will Join the Rest of the demesne in Abandoning crownwork punishment, in DEBATING THE DEATH PENALTY SHOULD AMERICA HAVE CAPITAL PUNISHMENT? 52 (Hugo Adam Bedau & Paul G. Cassell eds. , 2004) herein later DEBATING THE DEATH PENALTY. 3. secure, e. g. , James S. Liebman et al. , A Broken System Error Rates in smashing Cases, 1973-1995 (Columbia Law Sch. , Pub. Law Research Paper No. 15, 2000) (on file with authors). 4. See, e. g. , Luis P. Pojman, Why the terminal penalisation Is Morally Permissible, in DEBATING THE DEATH PENALTY, supra demarcation 2, at 51, 55-58. 5. See IMMANUEL KANT, THE PHILOSOPHY OF LAW AN expo OF THE FUN madamNTAL PRINCIPLES OF JURISPRUDENCE AS THE SCIENCE OF RIGHT 198 (W.Hastrie trans. , 1887) (1797). 6. Arguments along these lines can be pitch in Pojman, supra assembly line 4, at 58-73. SUNSTEIN & VERMEULE 58 STAN. L. REV. 703 1/9/2006 105105 AM declination 2005 IS CAPITAL PUNISHMENT MORALLY REQUIRED? 705 egress of gravid punishment is significant and that it justifies the infliction of the ultimate penalty. Consequentialist defenses of enceinte punishment, however, tend to assume that chapiter punishment is ( but) cleanisticly permissible, as opposed to cosmos chastely de rigueur.Our goal here is to suggest that the debate over majuscule punishment is rooted in an unchallenge assumption and that the failure to chief that assumption is a serious moral error. The assumption is that f or establishments, acts are morally different from omissions. We want to raise the chance that an indefensible form of the act/omission distinction is life-and-death to approximately of the most prominent objections to smashing punishmentand that defenders of capital punishment, apparently making the same distinction, adjudge failed to notice that according to the logic of their theory, capital punishment is morally obligatory, not just permissible.We suggest, in opposite words, that on sealed observational assumptions, capital punishment may be morally required, not for retributive reasons, but rather to prevent the taking of innocent lives. 7 The suggestion bears not unaccompanied on moral and political debates, but also on constitutional questions. In invalidating the death penalty for moderns, for example, the Supreme Court did not seriously engage the possibility that capital punishment for juveniles may help to prevent the death of innocents, including juvenile inn ocents. And if our suggestion is correct, it relates to many questions outside of the context of capital punishment. If omissions by the reconcile are often indistinguishable, in principle, from actions by the ground, then a wide range of apparent failures to actin the context not only if of criminal and civil law, but of regulative law as wellshould be interpreted to raise serious moral and legal problems. Those who accept our arguments in prefer of the death penalty may or may not welcome the implications for government action in familiar.In many situations, ranging from environmental quality to appropriations to highway safety to relief of poverty, our arguments suggest that in light of 7. In so motto, we are suggesting the possibility that pronounces are obliged to maintain the death penalty option, not that they essential inflict that penalty in every individual case of a specified sort accordingly we are not attempting to enter into the debate over mandatory death sentences, as invalidated in Lockett v. Ohio, 438 U. S. 586 (1978), and Woodson v. North Carolina, 428 U. S. 280 (1976). For relevant discussion, chitchat Martha C.Nussbaum, Equity and Mercy, 22 PHIL. & PUB. AFF. 83 (1993). 8. Roper v. Simmons, 125 S. Ct. 1183 (2005). Here is the watch of the Courts discussion As for disincentive, it is unclear whether the death penalty has a significant or even measurable deterrent view on juveniles, as counsel for the petitioner acknowledged at oral argument. . . . The absence of indorse of deterrent effect is of special fix because the same characteristics that render juveniles less(prenominal)(prenominal) culpable than adults suggest as well that juveniles go forthing be less susceptible to deterrence. . . To the finale the juvenile death penalty energy shit residual deterrent effect, it is worth noting that the punishment of life gyves without the possibility of parole is itself a severe sanction, in occurrence for a young person. Id. at 1196. These are speculations at best, and they do not engage with the empirical literature of course, that literature does not dispose of the question whether juveniles are deterred by the death penalty. SUNSTEIN & VERMEULE 58 STAN. L. REV. 703 1/9/2006 105105 AM 06 STANFORD LAW REVIEW Vol. 58703 imaginable empirical fancyings, government is obliged to provide far more rampart than it now does, and it should not be permitted to hide behind unhelpful distinctions between acts and omissions. The foundation for our argument is a significant body of recent evidence that capital punishment may well require a deterrent effect, possibly a quite powerful one. 9 A leading national reckon suggests that each instruction execution prevents whatever eighteen murders, on average. 0 If the current evidence is even slightly correcta question to which we shall returnthen a refusal to overthrow capital punishment provide effectively condemn numerous innocent people to death. States t hat choose life im prison housement, when they might choose capital punishment, are ensuring the deaths of a large number of innocent people. 11 On moral grounds, a natural selection that effectively condemns large numbers of people to death seems objectionable to say the least.For those who are inclined to be nescient of capital punishment for moral reasonsa group that admits one of the current authorsthe task is to sum up the possibility that the failure to impose capital punishment is, prima facie and all things considered, a serious moral terms. Judgments of this sort are often taken to require a controversial commitment to a consequentialist view about the foundations of moral evaluation. One of our whiz points, however, is that the alternative between consequentialist and deontological approaches to morality is not crucial here.We suggest that, on certain empirical assumptions, theorists of both stripes might converge on the mentation that capital punishment is morally obligatory. On 9. See, e. g. , Hashem Dezhbakhsh et al. , Does Capital Punishment Have a Deterrent Effect? sweet Evidence from Postmoratorium Panel Data, 5 AM. L. & ECON. REV. 344 (2003) 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) Joanna M. Shepherd, Deterrence Versus Brutalization Capital Punishments Differing Impacts Among States, 104 MICH. L. REV. 03 (2005) hereinafter Shepherd, Deterrence Versus Brutalization Joanna M. Shepherd, Murders of Passion, Execution Delays, and the Deterrence of Capital Punishment, 33 J. LEGAL STUD. 283, 308 (2004) hereinafter Shepherd, Murders of Passion Paul R. Zimmerman, Estimates of the Deterrent Effect of Alternative Execution Methods in the United States, 65 AM. J. ECON. & SOC. (forthcoming 2006) hereinafter Zimmerman, Alternative Execution Methods, available at http//papers. ssrn. com/sol3/papers. cfm? abstract_id=355783 Paul R. Zimmer man, State Executions, Deterrence, and the Incidence of Murder, 7 J. APPLIED ECON. 63, 163 (2004) hereinafter Zimmerman, State Executions. 10. See Dezhbakhsh et al. , supra differentiate 9, at 344. In what follows, we will speak of each execution economic clay eighteen lives in the United States, on average. We are, of course, suppressing many issues in that formulation, simply for expository convenience. For one thing, that statistic is a national average, as we emphasize in Part IV. For an new(prenominal)(prenominal) thing, future research might find that capital punishment has diminishing returns even if the first 100 executions deter 1800 murders, it does not follow that another 1000 executions will deter another 18,000 murders.We will take these and like qualifications as chthonianstood in the discussion that follows. 11. In recent years, the number of murders in the United States has fluctuated between 15,000 and 24,000. FED. BUREAU OF INVESTIGATION, CRIME IN THE UNITED S TATES tbl. 1 (2003), available at http//www. fbi. gov/ucr/03cius. htm. SUNSTEIN & VERMEULE 58 STAN. L. REV. 703 1/9/2006 105105 AM December 2005 IS CAPITAL PUNISHMENT MORALLY REQUIRED? 707 consequentialist grounds, the death penalty seems morally obligatory if it is the only or most effective promoter of preventing significant numbers of murders some(prenominal) of our discussion will research this point.For this reason, consequentialists should have little difficulty with our arguments. For deontologists, a killing is a wrong chthonian most circumstances, and its inappropriateness does not depend on its consequences or its effects on overall wellbeing. Many deontologists (of course not all) believe that capital punishment counts as a moral wrong. merely in the abstract, any deontological injunction against the wrongful infliction of death turns out to be indeterminable on the moral status of capital punishment if the death is necessary to prevent significant numbers of kill ings.The un articulated assumption animating much ambition to capital punishment among intuitive deontologists is that capital punishment counts as an action by the state, darn the refusal to impose it counts as an omission, and that the two are altogether different from the moral point of view. A think way to put this point is to suggest that capital punishment counts as a killing, piece the failure to impose capital punishment counts as no such thing and hence is far less problematic on moral grounds. We shall investigate these engages in some detail.But we suspect that the distinction between state actions and state omissions can bear the moral weight given to it by the critics of capital punishment. Whatever its judge as a moral concept where individuals are concerned, the act/omission distinction misfires in the general setting of government regulation. If government policies fail to protect people against air pollution, occupational risks, terrorism, or racial discrimin ation, it is inadequate to put great moral weight on the idea that the failure to act is a mere omission. No one believes that government can avoid responsibility to protect people against serious dangersfor example, by refusing to en effect regulatory statutessimply by contending that such refusals are unproblematic omissions. 12 If state governments impose light penalties on offenders or treat certain offenses (say, domestic help violence) as unworthy of help, they should not be able to escape public retribution by contending that they are simply refusing to act.Where government is concerned, failures of protection, finished refusals to punish and deter surreptitious misconduct, cannot be justified by pointing to the distinction between acts and omissions. It has even fit common to speak of risk-risk tradeoffs, understood to arise when regulation of one risk (say, a risk associated with the use of DDT) gives rise to another risk (say, the spread of malaria, against which DDT has been effective). 13 Or suppose that an air pollutant creates inauspicious health effects 12.Indeed, agency inaction is frequently subject to judicial review. See Ashutosh Bhagwat, Three-Branch Monte, 72 NOTRE DAME L. REV. 157 (1996). 13. See principally RISK VERSUS RISK TRADEOFFS IN PROTECTING HEALTH AND THE ENVIRONMENT (John D. Graham & Jonathan Baert weenie eds. , 1995) (considering risk-risk tradeoffs on topics such as DDT, the use of estrogen for menopause, and clozapine theory SUNSTEIN & VERMEULE 58 STAN. L. REV. 703 1/9/2006 105105 AM 708 STANFORD LAW REVIEW Vol. 58703 ut also has health benefits, as appears to be the case for ground- take aim ozone. 14 It is implausible to say that, for moral reasons, social planners should refuse to take circular of such tradeoffs there is general agreement that whether a particular substance ought to be regulated depends on the overall effect of regulation on human well-being. As an empirical count, criminal law is pervaded by its own risk-risk tradeoffs. When the deterrent signal works, a failure to impose stringent penalties on certain crimes will addition the number of those crimes.A refusal to impose such penalties is, for that reason, problematic from the moral point of view. It should not be executable for an officiala governor, for exampleto attempt to escape political retribution for failing to prevent domestic violence or environmental degradation by claiming that he is simply failing to act. The very idea of equal protection of the laws, in its oldest and most literal smack, attests to the importance of enforcing the criminal and civil law so as to safeguard the potential victims of private violence. 5 What we are suggesting is that to the extent that capital punishment saves more lives than it extinguishes, the death penalty seduces a risk-risk tradeoff of its ownindeed, what we will telephone a life-life tradeoff. Of course, the presence of a life-life tradeoff does not resolve the capital p unishment debate. By itself, the act of execution may be a wrong, in a way that cannot be utter of an act of imposing civil or criminal penalties for, say, environmental degradation.But the existence of life-life tradeoffs raises the possibility that for those who oppose killing, a rule oution of capital punishment is not inevitably mandated. On the contrary, it may well be morally compelled. At the very least, those who object to capital punishment, and who do so in the name of protecting life, must come to terms with the possibility that the failure to inflict capital punishment will fail to protect lifeand must, in our view, justify their repose in ways that do not rely on question-begging claims about the distinction between state actions and state omissions, or between killing and letting die.We begin, in Part I, with the circumstances. Raising doubts about widely held tones base on older studies or partial information, recent studies suggest that capital punishment may w ell save lives. One leading say finds that as a national average, each execution deters some eighteen murders. Our question whether capital punishment is morally obligatory is motivated by these determinations our central concern is that fore sack any given execution may be equivalent to condemning some nameless people to a premature and violent death.Of course, social science can always be disputed in this contentious domain, and spirited attacks have been made on the recent studies16 hence, we mean to for schizophrenia). 14. See Am. Trucking Assns, Inc. v. EPA, 175 F. 3d 1027, 1051-53 (D. C. Cir. 1999). 15. See RANDALL KENNEDY, RACE, CRIME, AND THE LAW (1997). 16. See Richard Berk, New Claims About Executions and familiar Deterrence Deja SUNSTEIN & VERMEULE 58 STAN. L. REV. 703 1/9/2006 105105 AM December 2005 IS CAPITAL PUNISHMENT MORALLY REQUIRED? 709 outline, rather than to defend, the relevant evidence here.But we think that to make progress on the moral issues, it is prod uctive and even necessary to take those findings as given and consider their significance. Those who would like to abolish capital punishment, and who find the social science unconvincing, might find it useful to ask whether they would maintain their commitment to abolition if they were firmly persuaded that capital punishment does have a strong deterrent effect. We ask such people to suspend their empirical doubts in order to investigate the moral issues that we mean to raise here.In Part II, the centrepiece of the Article, we offer a few remarks on moral foundations and examine some standard objections to capital punishment that might seem plausible even in light of the current findings. We concentre in particular on the view that capital punishment is objectionable because it requires affirmative and intentional state action, not merely an omission. The act/omission distinction, we suggest, systematically misfires when applied to government, which is a moral agent with distinc tive features.The act/omission distinction may not even be intelligible in the context of government, which always reflections a choice among form _or_ system of government regimes, and in that sense cannot help but act. Even if the distinction between acts and omissions can be rendered intelligible in regulatory settings, its moral relevance is obscure. Some acts are morally obligatory, while some omissions are morally culpable. If capital punishment has significant deterrent effects, we suggest that for government to put down to impose it is morally blameworthy, even on a deontological account of morality.Deontological accounts typically recognize a consequentialist nullification to service line prohibitions. If each execution saves an average of eighteen lives, then it is plausible to think that the overturn is triggered, in turn triggering an obligation to suck in capital punishment. Once the act/omission distinction is rejected where government is concerned, it becomes cl ear that the most familiar, and plausible, objections to capital punishment deal with only one side of the ledger the objections fail to take account of the exceedingly arbitrary deaths that capital punishment may deter.The realm of homicide, as we shall call it, is replete with its own arbitrariness. We consider rule-of-law concerns about the irreversibility of capital punishment and its possibly random or invidious administration, a strict scrutiny principle that capital punishment should not be permitted if other room for producing the same level of deterrence are available, and concerns about slippery slopes. We suggest that while some of these complaints have Vu All over Again? , 2 J. EMPIRICAL LEGAL STUD. 03 (2005) see also Deterrence and the Death Penalty A Critical Review of New Evidence Hearings on the Future of Capital Punishment in the State of New York Before the New York State Assemb. Standing Comm. on Codes, Assemb. Standing Comm. on Judiciary, and Assemb. Standing Co mm. on Correction, 2005 Leg. , 228th Sess. 1-12 (N. Y. 2005) (statement of Jeffrey Fagan, Professor of Law and Pub. Health, Columbia Univ. ), available at www. deathpenaltyinfo. org/FaganTestimony. pdf hereinafter Deterrence and the Death Penalty.For a response to Fagans testimony, see generally Shepherd, Deterrence Versus Brutalization, supra name 9. SUNSTEIN & VERMEULE 58 STAN. L. REV. 703 1/9/2006 105105 AM 710 STANFORD LAW REVIEW Vol. 58703 merit, they do not count as decisive objections to capital punishment, because they embody a flawed version of the act/omission distinction and generally overlook the fact that the moral objections to capital punishment apply even more strongly to the murders that capital punishment apparently deters.In Part III, we conjecture that unhomogeneous cognitive and social mechanisms, lacking any claim to moral relevance, may cause many individuals and groups to subscribe to untenable versions of the distinction between acts and omissions or to s end away the lifesaving potential of capital punishment while exaggerating the hurts that it causes. An important concern here is a sort of set concreteness, stemming from heuristics such as salience and availability. The single person go by means ofd is often more visible nd more salient in public discourse than any abstract statistical persons whose murders might be deterred by a single execution. If those people, and their names and faces, were highly visible, we suspect that many of the objections to capital punishment would at least be shaken. As environmentalists have often argued, statistical persons should not be treated as tangential abstractions. 17 The point holds for criminal justice no less than for pollution controls. Part IV expands upon the implications of our view and examines some unresolved puzzles.Here we emphasize that we hold no brief for capital punishment crossways all contexts or in the abstract. The crucial question is what the facts show in particular domains. We mean to include here a plea not only for continuing assessment of the disputed evidence, but also for a disaggregated approach. Future research and resulting policies would do well to take separate account of various regions and of various classes of offenders and offenses. We also emphasize that our argument is limited to the setting of life-life tradeoffs in which the taking of a life by the state will narrow the number of lives taken overall.We express no view about cases in which that condition does not holdfor example, the possibility of capital punishment for serious offenses other than killing, with rape being the principal historical example, and with rape of children being a currently contested problem. Such cases involve distinctively difficult moral problems that we mean to bracket here. A brief conclusion follows. I. EVIDENCE For many years, the deterrent effect of capital punishment was sharply disputed. 18 In the 1970s, Isaac Ehrlich conducted the first m ultivariate 17. Lisa Heinzerling, The Rights of Statistical People, 24 HARV.ENVTL. L. REV. 189, 189 (2000). 18. Compare, e. g. , Isaac Ehrlich, The Deterrent Effect of Capital Punishment A Question of Life and Death, 65 AM. ECON. REV. 397, 398 (1975) (estimating each execution deters eight murders), with William J. Bowers & Glenn L. Pierce, The Illusion of Deterrence in Isaac Ehrlichs Research on Capital Punishment, 85 YALE L. J. 187, 187 (1975) (finding Ehrlichs information and methods unreliable). A good overview is Robert Weisberg, The Death SUNSTEIN & VERMEULE 58 STAN. L. REV. 703 1/9/2006 105105 AM December 2005 IS CAPITAL PUNISHMENT MORALLY REQUIRED? 711 egression analyses of the death penalty, found on time-series data from 1933 to 1967, and concluded that each execution deterred as many as eight murders. 19 But ulterior studies raised many questions about Ehrlichs conclusionsby showing, for example, that the deterrent effects of the death penalty would be eliminated if da ta from 1965 through 1969 were eliminated. 20 It would be fair to say that the deterrence hypothesis could not be confirmed by the studies that have been completed in the twenty years after Ehrlich first wrote. 21 More recent evidence, however, has given new life to Ehrlichs hypothesis. 2 A wave of modern multiple obsession studies have exploited a newly available form of data, so-called gameboard data, that uses all information from a set of units (states or counties) and follows that data over an extended outcome of time. A leading pick up used county-level panel data from 3054 U. S. counties between 1977 and 1996. 23 The authors found that the murder rate is significantly reduced by both death sentences and executions. The most striking finding was that on average, each execution results in eighteen fewer murders. 24 Other econometric studies also find a substantial deterrent effect.In two papers, Paul Zimmerman uses state-level panel data from 1978 onwards to measure the de terrent effect of execution rates and execution methods. He estimates that each execution deters an average of fourteen murders. 25 apply state-level data from 1977 to 1997, H. Naci Mocan and R. Kaj Gittings find that each execution deters five murders on average. 26 They also find that increases in the murder rate result when people are removed from death row Penalty Meets favorable Science Deterrence and Jury Behavior Under New Scrutiny, 1 ANN. REV. L. & SOC. SCI. 151 (2005). 19.See Ehrlich, supra note 18, at 398 Isaac Ehrlich, Capital Punishment and Deterrence Some Further Thoughts and Additional Evidence, 85 J. POL. ECON. 741 (1977). 20. For this point and an overview of many other checks of Ehrlichs conclusions, see Richard O. Lempert, Desert and Deterrence An Assessment of the Moral Bases of the Case for Capital Punishment, 79 MICH. L. REV. 1177 (1981). 21. See id. Weisberg, supra note 18, at 155-57. 22. Even as this evidence was being developed, one of us predicted, perh aps rashly, that the debate would remain inconclusive for the foreseeable future. See Adrian Vermeule, Interpretive Choice, 75 N.Y. U. L. REV. 74, 100-01 (2000). 23. See Dezhbakhsh et al. , supra note 9, at 359. 24. Id. at 373. 25. Zimmerman, Alternative Execution Methods, supra note 9 Zimmerman, State Executions, supra note 9, at 190. 26. Mocan & Gittings, supra note 9, at 453. Notably, no clear evidence of a deterrent effect from capital punishment emerges from Lawrence Katz et al. , Prison Conditions, Capital Punishment, and Deterrence, 5 AM. L. & ECON. REV. 318, 330 (2003), which finds that the estimate of deterrence is extremely sensitive to the choice of specification, with the largest estimate paralleling that in Ehrlich, supra note 18.Note, however, that the principal finding in Katz et al. , supra, is that prison deaths do have a strong deterrent effect and a stunningly large onewith each prison death producing a reduction of 30-100 violent crimes and a similar number of pr operty crimes. Id. at 340. SUNSTEIN & VERMEULE 58 STAN. L. REV. 703 1/9/2006 105105 AM 712 STANFORD LAW REVIEW Vol. 58703 and when death sentences are commuted. 27 A study by Joanna Shepherd, based on data from all states from 1997 to 1999, finds that each death sentence deters 4. 5 murders and that an execution deters 3 additional murders. 8 Her study also investigates the contested question whether executions deter crimes of passion and murders by intimates. Although lore might suggest that such crimes cannot be deterred, her own finding is clear all categories of murder are deterred by capital punishment. 29 The deterrent effect of the death penalty is also found to be a function of the length of waits on death row, with a murder deterred for every 2. 75 years of reduction in the period before execution. 30 Importantly, this study finds that the deterrent effect of capital punishment protects African-American victims even more than whites. 1 In the period between 1972 and 1976, the Supreme Court produced an effective moratorium on capital punishment, and an extensive unpublished study exploits that fact to estimate the deterrent effect. Using state-level data from 1977 to 1999, the authors make before-and-after comparisons, focusing on the murder rate in each state before and after the death penalty was suspended and reinstated. 32 The authors find a substantial deterrent effect The data indicate that murder rates increased immediately after the moratorium was imposed and decreased directly after the moratorium was lifted, providing support for the deterrence hypothesis. 33 A recent study offers more refined findings. 34 Disaggregating the data on a state-by-state basis, Joanna Shepherd finds that the nationwide deterrent effect of capital punishment is all driven by only half a dozen statesand that no deterrent effect can be found in the twenty-one other states that have restored capital punishment. 35 What distinguishes the six from the twenty-one? Th e answer, she contends, lies in the fact that states showing a deterrent effect are executing more people than states that are not. In fact the data show a 27. Mocan & Gittings, supra note 9, at 453, 456. 8. Shepherd, Murders of Passion, supra note 9, at 308. 29. Id. at 305. Shepherd notes Many researchers have argued that some types of murders cannot be deterred they observe that murders committed during arguments or other crime-of-passion moments are not premeditated and therefore undeterrable. My results indicate that this assertion is wrong the rates of crime-of-passion and murders by intimatescrimes previously believed to be undeterrableall decrease in execution months. Id. 30. Id. at 283. 31. Id. at 308. 32. Hashem Dezhbakhsh & Joanna M.Shepherd, The Deterrent Effect of Capital Punishment Evidence from a Judicial Experiment, at tbls. 3-4 (Am. Law & political economy Assn Working Paper No. 18, 2004), available at http//law. bepress. com/cgi/viewcontent. cgi? article=1017&conte xt=alea (last visited Dec. 1, 2005). 33. Id. at 3-4. 34. Shepherd, Deterrence Versus Brutalization, supra note 9. 35. Id. at 207. SUNSTEIN & VERMEULE 58 STAN. L. REV. 703 1/9/2006 105105 AM December 2005 IS CAPITAL PUNISHMENT MORALLY REQUIRED? 713 threshold effect deterrence is found in states that had at least nine total executions between 1977 and 1996.In states below that threshold, no deterrence effect can be found. 36 This finding is intuitively plausible. Unless executions reach a certain level, murderers may act as if the death penalty is so improbable as not to be worthy of concern. 37 Shepherds main lesson is that once the level of executions reaches a certain level, the deterrent effect of capital punishment is substantial. All in all, the recent evidence of a deterrent effect from capital punishment seems impressive, particularly in light of its apparent power and unanimity. 38 But in studies of this kind, it is hard to control for befuddle variables, and reasonable dou bts inevitably remain. Most broadly, skeptics are likely to question the mechanisms by which capital punishment is s care to have a deterrent effect. In the skeptical view, many murderers lack a clear sense of the likelihood and perhaps even the existence of executions in their states further problems for the deterrence claim are introduced by the fact that capital punishment is imposed infrequently and after long delays.Emphasizing the weakness of the deterrent signal, Steven Levitt has suggested that it is hard to believe that fear of execution would be a driving force in a shrewd criminals cream of tartar in modern America. 39 And, of course, some criminals do not act acutely many murders are committed in a passionate state that does not tote up itself to an all-things-considered analysis on the part of perpetrators. More narrowly, it remains possible that the recent findings will be expose as statistical artifacts or found to rest on flawed econometric methods.Work by Richa rd Berk, based on his independent review of the state-level panel data from Mocan and Gittings, offers multiple objections to those authors finding of deterrence. 40 For example, Texas executes more people than any other state, and when Texas is removed from the data, the evidence of deterrence is severely weakened. 41 Removal of the apparent outlier states that execute the largest numbers of people seems to eliminate the finding of deterrence 36. Id. at 239-41. 37.Less intuitively, Shepherd finds that in thirteen of the states that had capital punishment but executed few people, capital punishment actually increased the murder rate. She attributes this confuse result to what she calls the brutalization effect, by which capital punishment devalues human life and teaches people about the genuineness of vengeance. Id. at 40-41. 38. See Weisberg, supra note 18, at 159. 39. See Steven D. Levitt, Understanding Why Crime cruel in the 1990s Four Factors that Explain the Decline and Six that Do Not, 18 J. ECON. PERSP. 163, 175 (2004). 0. See Berk, supra note 16 Deterrence and the Death Penalty, supra note 16, at 6-12. 41. Berk, supra note 16, at 320. It has also been objected that the studies do not take account of the availability of sentences that involve life without the possibility of parole such sentences might have a deterrent effect equal to or beyond that of capital punishment. See Deterrence and the Death Penalty, supra note 16. A response to Berk can found in Shepherd, Deterrence Versus Brutalization, supra note 9. SUNSTEIN & VERMEULE 58 STAN. L. REV. 703 1/9/2006 105105 AM 714STANFORD LAW REVIEW Vol. 58703 altogether. 42 Berk concludes that the findings of Mocan and Gittings are driven by six states with more than five executions each year. Berk, however, proceeds by presenting data in graphic form he offers no regression analyses in support of his criticism. These concerns about the evidence should be taken as useful cautions. At the level of theory, it is plausible that if criminals are fully rational, they should not be deterred by infrequent and much-delayed executions the deterrent signal may well be too weak to affect their manner.But suppose that like most people, criminals are boundedly rational, assessing probabilities with the aid of heuristics. 43 If executions are highly salient and cognitively available, some prospective murderers will overestimate their likelihood, and will be deterred as a result. Other prospective murderers will not pay much attention to the fact that execution is unlikely, focusing instead on the badness of the outcome (execution) rather than its low probability. 44 Few murderers are likely to assess the deterrent signal by multiplying the harm of execution against its likelihood.If this is so, then the deterrent signal will be larger than might be suggested by the product of that multiplication. Levitts theoretical claim assumes that prospective murderers are largely rational in their reaction to the death penalty and its probabilitystanding by itself, a plausible conjecture but no more. As for the recent data, it is true that evidence of deterrence is reduced or eliminated through the removal of Texas and other states in which executions are most common and in which evidence of deterrence is strongest. 5 But removal of those states seems to be an risible way to resolve the contested questions. States having the largest numbers of executions are most likely to deter, and it does not seem to make sense to exclude those states as outliers. 46 By way of comparison, imagine a study attempting to decide what characteristics of baseball teams most increase the chance of winning the World Series. Imagine also a criticism of the study, parallel to Berks, which complained that data about the New York Yankees should be thrown out, on the ground that the Yankees have won so many times as to be outliers. This would be an odd idea, because empiricists must go where the evidence is in the case of capital punishment, the outliers provide much of the relevant evidence. sequestrate here Shepherds finding, compatible with the analysis of some skeptics, that the deterrent effect occurs only in states in which there is some threshold 42. Berk, supra note 16, at 320-24 Shepherd, Deterrence Versus Brutalization, supra note 9. 43. On bounded grounds in general, see RICHARD H. THALER, QUASI-RATIONAL ECONOMICS (1991). 44.See Yuval Rottenstreich & Christopher K. Hsee, Money, Kisses, and Electric Shocks On the Affective Psychology of Risk, 12 PSYCHOL. SCI. 185, 188 (2001) Cass R. Sunstein, Probability neglectfulness Emotions, Worst Cases, and Law, 112 YALE L. J. 61 (2002). 45. See Shepherd, Deterrence Versus Brutalization, supra note 9. 46. Id. SUNSTEIN & VERMEULE 58 STAN. L. REV. 703 1/9/2006 105105 AM December 2005 IS CAPITAL PUNISHMENT MORALLY REQUIRED? 715 number of executions. 47 But let 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. As Shepherd also finds in her most recent study,48 more frequent executions, carried out in closer proximity to convictions, are predicted to amplify the deterrent signal for both rational and boundedly rational criminals. We can go further. A degree of doubt, with respect to the current system, need not be taken to suggest that existing evidence is irrelevant for purposes of policy and law.In regulation as a whole, it is common to tit some version of the precautionary principle49the idea that steps should be taken to prevent significant harm even if cause-and-effect relationships remain unclear and even if the risk is not likely to come to fruition. Even if we reject strong versions of the precautionary principle,50 it hardly seems sensible that governments should ignore evidence demonstrating a significant possibility that a certain step will save large numbers of innocent lives.For capital punishment, critics often seem to assume that evidence on deterrent effects should be ignored if reasonable questions can be raised about the evidences 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. If it were, many environmental controls would be in serious jeopardy. 51 We do not mean to suggest that government should commit what many people consider to be, prima facie, a serious moral wrong simply on the basis of speculation that this action will do some good.But 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. It is possible that capital punishment saves lives on net, even if it has zero deterrent effect. A life-life tradeoff may arise in several ways. One possibility, the one we focus on here, is that capital punishment deters homicides. Another possi bility is that capital punishment has no deterrent effect, but saves lives just 7. See id. 48. Id. 49. For overviews of the precautionary principle and related issues, see INTERPRETING THE PRECAUTIONARY PRINCIPLE (Tim ORiordan & James Cameron eds. , 1994) ARIE TROUWBORST, EVOLUTION AND STATUS OF THE PRECAUTIONARY PRINCIPLE IN INTERNATIONAL LAW (2002). 50. See, e. g. , Julian Morris, Defining the Precautionary Principle, in RETHINKING RISK AND THE PRECAUTIONARY PRINCIPLE (Julian Morris ed. , 2000). 51.Indeed, those skeptical of capital punishment invoke evidence to the effect that capital punishment did not deter, and argue, plausibly, that it would be a mistake to wait for definitive evidence before ceasing with a punishment that could not be shown to reduce homicide. See Lempert, supra note 20, at 1222-24. This is a kind of precautionary principle, arguing against the most warring forms of punishment if the evidence suggested that they did not deter. We are suggesting the possibil ity of a mirror-image precautionary principle when the evidence goes the other way. SUNSTEIN & VERMEULE 58 STAN.L. REV. 703 1/9/2006 105105 AM 716 STANFORD LAW REVIEW Vol. 58703 by incapacitating those who would otherwise kill again in the future. 52 Consider those jurisdictions that eschew capital punishment altogether. What sanction can such jurisdictions really apply to those who have already been sentenced to life in prison without parole? Sentences of this sort may take more lives overall by increasing the number of essentially unpunishable withinprison homicides of guards and fellow inmates. 53 Many murderers are killed in prison even in states that lack the death penalty. 4 And if murderers are eventually paroled into the general population, some of them will kill again. Overall, it is quite possible that the permanent wave incapacitation of murderers through execution might save lives on net. A finding that capital punishment detersand deterrence is our focus hereis suffici ent but not necessary to find a life-life tradeoff. In any event, our goal here is not to reach a final judgment about the evidence. It is to assess capital punishment given the assumption of a substantial deterrent effect.In what follows, therefore, we will stipulate to the validity of the evidence and consider its implications for morality and law. Those who doubt the evidence might ask themselves how they would assess the moral questions if they were ultimately convince that life-life tradeoffs were actually involvedas, for example, in hostage situations in which officials are authorized to use deadly force to protect the lives of innocent people. II. CAPITAL PUNISHMENT MORAL FOUNDATIONS AND FOUR OBJECTIONS Assume, then, that capital punishment does save a significant number of innocent lives.On what assumptions should that form of punishment be deemed morally unacceptable, rather than morally obligatory? Why should the deaths of those convicted of capital murder, an overwhelmin gly large fraction of whom are guilty in fact, be considered a more serious moral wrong than the deaths of a more numerous group who are certainly innocents? We consider, and ultimately reject, several responses. Our first general contention is that opposition to capital punishment trades on a form of the distinction between acts and omissions.Whatever the general force of that distinction, its application to government systematically fails, because government is a distinctive kind of moral agent. Our second general contention is that, apart from direct state involvement, the features that make capital punishment morally objectionable to its critics are also features of the very murders that capital punishment deters. The principal difference, on the empirical assumptions we are making, is that in a legal regime without capital punishment far more people die, and those people are innocent of any 2. See Ronald J. Allen & Amy Shavell, Further Reflections on the Guillotine, 95 J. CRIM. L. & CRIMINOLOGY 625, 630-31 (2005). 53. See id. at 630 n. 9. 54. See Katz et al. , supra note 26, at 340. SUNSTEIN & VERMEULE 58 STAN. L. REV. 703 1/9/2006 105105 AM December 2005 IS CAPITAL PUNISHMENT MORALLY REQUIRED? 717 wrongdoing. No one denies that arbitrariness in the system of capital punishment is a serious problem. But even if the existing system is viewed in its worst light, it involves far less arbitrariness than does the realm of homicide.Let us begin, however, with foundational issues. A. Morality and Death On a standard view, it is impossible to come to terms with the moral questions about capital punishment without saying something about the foundations of moral judgments. We will suggest, however, that sectarian commitments at the foundational level are for the most part irrelevant to the issues here. If it is stipulated that substantial deterrence exists, both consequentialist and deontological accounts of morality will or should converge upon the view that capit al punishment is morally obligatory.Consequentialists will come to that conclusion because capital punishment minimizes killings overall. Deontologists will do so because an opposition to killing is, by itself, indeterminate in the face of life-life tradeoffs because a legal regime with capital punishment has a strong claim to be more respectful of lifes value than does a legal regime lacking capital punishment and because modern deontologists typically subscribe to a consequentialist override or escape hatch, one that makes otherwise mpermissible actions obligatory if necessary to prevent many deathsprecisely what we are assuming is true of capital punishment. Only those deontologists who both insist upon a strong distinction between state actions and state omissions and who reject a consequentialist override will believe the deterrent effect of capital punishment to be irrelevant in principle. Suppose that we accept consequentialism and believe that government actions should be ev aluated in terms of their effects on aggregate welfare.If we do so, the evidence of deterrence strongly supports a moral argument in favor of the death penaltya form of punishment that, by hypothesis, seems to produce a net gain in overall welfare. Of course, there are many complications here for example, the welfare of many people might increase as a result of knowing that capital punishment exists, and the welfare of many other people might decrease for the same reason. A full consequentialist calculus would require a more elaborate assessment than we aim to provide here.The only point is that if capital punishment produces significantly fewer deaths on balance, there should be a strong consequentialist presumption on its behalf any argument against capital punishment, on consequentialist grounds, will face a steep uphill struggle. To be sure, it is also possible to imagine forms of consequentialism that reject welfarism as implausibly reductionist and see violations of rights as part of the set of consequences that must be taken into account in deciding what to SUNSTEIN & VERMEULE 58 STAN. L. REV. 03 1/9/2006 105105 AM 718 STANFORD LAW REVIEW Vol. 58703 do. 55 For some such consequentialists, killings are, under ordinary circumstances, a violation of rights, and this point is highly relevant to any judgment about killings. But even if the point is accepted, capital punishment may be required, not prohibited, on consequentialist grounds, simply because and to the extent that it minimizes rights violations. Private murders also break-dance rights, and the rights-respecting consequentialist must take those actions into account.But imagine that we are deontologists, believing that actions by government and others should not be evaluated in consequentialist terms how can capital punishment be morally permissible, let alone obligatory? For some deontologists, capital punishment is obligatory for moral reasons alone. 56 But suppose, as other deontologists believe , that under ordinary circumstances, the states killing of a human being is a wrong and that its wrongness does not depend on an inquiry into whether the action produces a net increase in welfare.For many critics of capital punishment, a deontological intuition is central evidence of deterrence is irrelevant because moral wrongdoing by the state is not justified even if it can be defended on useful grounds. Compare a situation in which a state seeks to kill an innocent person, knowing that the execution will prevent a number of private killings deontologists believe that the unjustified execution cannot be support even if the state is secure in its knowledge of the executions beneficial effects. Of course, it is contentious to claim that capital punishment is a moral wrong.But if it is, then significant deterrence might be entirely beside the point. It is simply true that many intuitive objections to capital punishment rely on a belief of this kind just as execution of an innocent person is a moral wrong, one that cannot be justified on consequentialist grounds, so too the execution of a guilty person is a moral wrong, whatever the evidence shows. Despite all this, our claims here do not depend on evaluate consequentialism or rejecting the deontological objection to evaluating unjustified killings in consequentialist terms.The argument is instead that by itself and in the abstract, this objection is indeterminate on the moral status of capital punishment. To the extent possible, we intend to bracket the most fundamental questions and to suggest that whatever ones view of the foundations of morality, the objection to the death penalty is difficult to sustain under the empirical assumptions that we have traced. 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 55.Amartya Sen, Rights and Agency, 11 PHIL. & PUB. AFF. 3, 15-19 (1982). 56. See Pojm an, supra note 4, at 58-59. As noted below, the case of Israel is a good test for such deontologists Israel does not impose the death penalty, in part on the ground that executions of terrorists would likely increase terrorism. Do deontologists committed to capital punishment believe that Israel is acting immorally? In our view, they ought not to do so, at least if the empirical assumption is right and if the protection of lives is what morality requires. SUNSTEIN & VERMEULE 58 STAN.L. REV. 703 1/9/2006 105105 AM December 2005 IS CAPITAL PUNISHMENT MORALLY REQUIRED? 719 very refusal, significant numbers of additional deaths. Recall the realm of homicide for deontologists who emphasize lifes value and object to the death penalty, the problem is acute if the refusal to impose that penalty predictably leads to a significant number of additional murders. In a hostage situation, constabulary officers are permitted to kill (execute) those who have taken hostages if this step is reasonabl y deemed necessary to save those who have been taken hostage.If the evidence of deterrence is convincing, why is capital punishment so different in principle? Of course, these points might be unresponsive to those who believe that execution of a guilty person is morally equivalent to execution of an innocent person and not properly subject to a recognition of life-life tradeoffs. We will explore this position in more detail below. And we could envision a form of deontology that refuses any exercise in assemblingone that would refuse to authorize, or compel, a violation of rights even if the violation is necessary to prevent a significantly larger number of rights violations.But most modern deontologists reject this position, instead admitting a consequentialist override to baseline deontological prohibitions. 57 Although the threshold at which the consequentialist override is triggered varies with different accounts, we suggest below that if each execution deters some eighteen murd ers, the override is plausibly triggered. To distill these points, the only deontological accounts that are inconsistent with our argument are those that both (1) embrace a distinction between state actions and state omissions and (2) reject a consequentialist override.To those who subscribe to this conglomerate of views, and who consider capital punishment a violation of rights, our argument will not be convincing. In the end, however, we believe that it is difficult to sustain the set of moral assumptions that would bar capital punishment if it is the best means of preventing significant numbers of innocent deaths. Indeed, we believe that many of those who think that they hold those assumptions are motivated by other considerationsespecially a failure to give full weight to statistical liveson which we focus in Part III. B.Acts and Omissions A natural response to our basic concern would invoke the widespread intuition that capital punishment involves intentional state action, whi le the failure to deter private murders is merely an omission by the state. In our view, this appealing and intuitive line of argument goes rather badly wrong. The critics of capital punishment have been led astray by uncritically applying the act/omission distinction to a regulatory setting. Their position condemns the active infliction of death by governments but does not condemn the inactive ware of death that comes from the refusal to maintain a system 57.For an overview, see Larry Alexander, Deontology at the Threshold, 37 SAN DIEGO L. REV. 893, 898-901 (2000). SUNSTEIN & VERMEULE 58 STAN. L. REV. 703 1/9/2006 105105 AM 720 STANFORD LAW REVIEW Vol. 58703 of capital punishment. The basic problem is that even if this selective condemnation can be justified at the level of individual behavior, it is difficult to defend for governments. 58 A great deal of work has to be done to explain why inactive, but causal, government decisions should not be part of the moral calculus.Suppose that we endorse the deontological position that it is wrong to take human lives, even if overall welfare is promoted by taking them. Why does the system of capital punishment violate that position, if the failure to impose capital punishment also takes lives? Perhaps our argument about unjustified selectivity is unsighted to morally relevant factors that condemn capital punishment and that buttress the act/omission distinction in this context. There are two possible points here, one involving intention and the other involving causation.First, a government (acting through agents) that engages in capital punishment intends to take lives it seeks to kill. A government that does not engage in capital punishment, and therefore provides less deterrence, does not intend to kill. The deaths that result are the unintended and unsought byproduct of an effort to respect life. Surely it might be saidthis is a morally relevant difference. Second, a government that inflicts capital punishment en sures a simple and direct causal chain between its own behavior and the taking of human lives.When a government rejects capital punishment, the causal chain is much more composite the taking of human lives is an indirect consequence of the governments decision, one that is mediated by the actions of a murderer. The government authorizes its agents to inflict capital punishment, but it does not authorize private parties to murder indeed, it forbids murder. Surely that is a morally relevant difference, too. We will begin, in Part II. B. 1, with questions about whether the act/omission distinction is conceptually intelligible in regulatory settings.Here the suggestion is that there just is no way to speak or think coherently about government actions as opposed to government omissions, because government cannot help but act, in some way or another, when choosing how individuals are to be regulated. In Part II. B. 2, we suggest that the distinction between government acts and omissions, even if conceptually coherent, is not morally relevant to the question of capital punishment. Some governmental actions are morally obligatory, and some governmental omissions are blameworthy.In this setting, we suggest, government is morally obligated to adopt capital punishment and morally at fault if it declines to do so. 1. Is the act/omission distinction coherent with respect to government? In our view, any effort to distinguish between acts and omissions goes 58. Compare debates over going to war Some pacifists insist, correctly, that acts of war will result in the loss of life, including civilian life. But a refusal to go to war will often result in the loss of life, including civilian life.SUNSTEIN & VERMEULE 58 STAN. L. REV. 703 1/9/2006 105105 AM December 2005 IS CAPITAL PUNISHMENT MORALLY REQUIRED? 721 wrong by overlooking the distinctive features of government as a moral agent. If correct, this point has broad implications for criminal and civil law. Whatever the genera l status of the act/omission distinction as a matter of moral philosophy,59 the distinction is least impressive when applied to government, because the most plausible underlying considerations do not apply to official actors. 0 The most fundamental point is 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. Most generally, government is in the business of creating permissions and prohibitions. When it explicitly or implicitly authorizes private action, it is not omitting to do anything or refusing to act. 1 Moreover, the distinction between authorized and unauthorized private actionfor example, private killing becomes obscure when the government formally forbids private action but chooses a set of policy instruments that do not adequa tely or fully discourage it. To be sure, a system of punishments that only weakly deters homicide, relative to other feasible punishments, does not quite authorize homicide, but that system is not properly characterised as an omission, and little turns on whether it can be so characterized.Suppose, for example, that government fails to characterize certain actionssay, sexual firementas tortious or violative of civil rights law and that it therefore permits employers to harass employees as they choose or to discharge employees for failing to submit to sexual harassment. It would be unhelpful to characterize the result as a product of governmental inaction. If employers are permitted to discharge employees for refusing to submit to sexual harassment, it is because the law is allocating certain entitlements to employers rather than employees. Or consider the context of ordinary torts.When Homeowner B sues Factory A over air pollution, a decision not to rule for Homeowner B is not a form of inaction it is the allocation to Factory A of a property right to pollute. In such cases, an apparent government omission is an action simply because it is an allocation of legal rights. Any decision that allocates such rights, by creating entitlements 59. For discussion of the philosophical controversy over acts and omissions, see generally RONALD DWORKIN, LIFES district AN ARGUMENT ABOUT ABORTION, EUTHANASIA, AND INDIVIDUAL FREEDOM (1993) Frances M.Kamm, Abortion and the Value of Life A Discussion of Lifes Dominion, 95 COLUM. L. REV. 160 (1995) (reviewing DWORKIN, supra) Tom Stacy, Acts, Omissions, and the Necessity of Killing Innocents, 29 AM. J. CRIM. L. 481 (2002). 60. Here we proceed in the spirit of Robert Goodin by treating government as a distinctive sort of moral agen