Life v. Death: Or Why the Death Penalty Should Marginally Deter

Econometric measures of the effect of capital punishment have increasingly provided evidence that it deters homicides. However, most researchers on both sides of the death penalty debate continue to rely on rather simple assumptions about criminal behavior. I attempt to provide a more nuanced and predictive rational choice model of the incentives and disincentives to kill, with the aim of assessing to what extent the statistical findings of deterrence are in line with theoretical expectations. In particular, I examine whether it is plausible to suppose there is a marginal increase in deterrence created by increasing the penalty from life imprisonment without parole to capital punishment. The marginal deterrence effect is shown to be a direct negative function of prison conditions as they are anticipated by the potential offender – the more tolerable someone perceives imprisonment to be, the less deterrent effect prison will have, and the greater the amount of marginal deterrence the threat of capital punishment will add. I then examine the empirical basis for believing there to be a subset of killers who are relatively unafraid of the prison environment, and who therefore may be deterred effectively only by the death penalty. Criminals, empirically, appear to fear a capital sentence, and are willing to sacrifice important procedural rights during plea bargaining to avoid this risk. This has the additional effect of increasing the mean expected term of years attached to a murder conviction, and may generate a secondary deterrent effect of capital punishment. At least for some offenders, the death penalty should induce greater caution in their use of lethal violence, and the deterrent effect seen statistically is possibly derived from the change in the behavior of these individuals. This identification of a particular group on whom the death penalty has the greatest marginal effect naturally suggests reforms in sentencing (and plea bargaining) which focus expensive capital prosecutions on those most resistant to alternative criminal sanctions

Cross-Examining The Brain: A Legal Analysis of Neural Imaging for Credibility Impeachment

The last decade has seen remarkable process in understanding ongoing psychological processes at the neurobiological level, progress that has been driven technologically by the spread of functional neuroimaging devices, especially magnetic resonance imaging, that have become the research tools of a theoretically sophisticated cognitive neuroscience. As this research turns to specification of the mental processes involved in interpersonal deception, the potential evidentiary use of material produced by devices for detecting deception, long stymied by the conceptual and legal limitations of the polygraph, must be re-examined. Although studies in this area are preliminary, and I conclude they have not yet satisfied the foundational requirements for the admissibility of scientific evidence, the potential for use – particularly as a devastating impeachment threat to encourage factual veracity – is a real one that the legal profession should seek to foster through structuring the correct incentives and rules for admissibility. In particular, neuroscience has articulated basic memory processes to a sufficient degree that contemporaneously neuroimaged witnesses would be unable to feign ignorance of a familiar item (or to claim knowledge of something unfamiliar). The brain implementation of actual lies, and deceit more generally, is of greater complexity and variability. Nevertheless, the research project to elucidate them is conceptually sound, and the law cannot afford to stand apart from what may ultimately constitute profound progress in a fundamental problem of adjudication