The Texas Deterrence Muddle

The ongoing debate about capital punishment in the United States juggles several contentious questions. Innocence, cost, racial fairness, proportionality, retributivist calculus, and deterrence concerns thread a literature whose richness testifies to the endurance of capital punishment in American legal and political culture. For proponents of capital punishment, the connection between the moral and utilitarian or consequentialist positions trumps all other concerns: They suggest that if the death penalty can prevent—through the incapacitation of the offender and general deterrence of would-be killers—the loss of even one innocent life from murder, then execution is a morally justified or perhaps even morally required penal response (Sunstein and Vermeule, 2005).1 This linkage raises the stakes in the death penalty beyond policy considerations (Garland, 2011; Steiker and Steiker, 2010; Zimring, 2003) and elevates the question of whether executions deter to near primacy in this debate. The latest work on executions and murders reported by Kenneth C. Land, Raymond H. C. Teske, and Hui Zheng (2012, this issue), together with reports from previous stages of their Texas capital punishment project (Land, Teske, and Zheng, 2009), takes its place in the recurring debate surrounding the deterrence question (Nagin and Pepper, 2012). As with its predecessors, Land et al.’s work has implications for both the moralist and consequentialist