First of all, let me take this opportunity to thank Eugene for allowing me to guest blog this week about the survey research I have been conducting with Steve Ansolabehere. We hope to conduct a similar survey annually and are seeking to share the costs and content with interested law professors, along the lines of the Cooperative Congressional Election Survey, in which 30 universities now participate. Interested law professors should contact me if they would like their institution to participate in future versions of this survey.
About two thirds of the survey we conducted in July covers questions that have been asked before, such as the abortion, same-sex marriage and gun rights questions mentioned in my earlier post. This allows us to assess change over time, even if, as many recognize, each question has problems with its wording or framing (e.g., what do respondents mean when they say Roe v. Wade should not be overturned, when few people know what Roe actually said and many of those same respondents would support banning abortions under certain circumstances where Roe and Casey would protect abortion rights?). These concerns are discussed at length in Public Opinion and Constitutional Controversy.
Take for example, the death penalty question that we (and other surveys) asked: “Should the government be allowed to apply the death penalty in any of the following cases:
An adult convicted of murder (77% say yes)
A mentally retarded person convicted of murder (19% say yes)
Someone under 18 convicted of murder (42% say yes)
A person convicted of raping a child (67% say yes)
A person convicted of treason against the US (61% say yes)”
When a survey offers the respondent the option of death penalty or life without parole, aggregate support for the death penalty for an adult convicted of murder drops by about 15 to 20 percentage points. (Incidentally, we see a similar phenomenon with respect to same-sex marriage when a civil union option is provided in the question: the share of the respondents supporting same-sex marriage goes down by ten percentage points or so and the share supporting no legal recognition is about ten points lower than is the anti-marriage response in a two-option question. See here.) However, when pressed, even those who chose life without parole would allow executions in certain circumstances – 1/5 of those preferring life without parole nevertheless opted for the death penalty for Timothy McVeigh, for example, in a CBS poll that pressed the question in 2001. As compared to other recent surveys, ours seems to be at the high end of support for the death penalty. Although substantial majorities historically and today support the death penalty, most observers noticed the trend reversing slightly beginning in the mid 1990s. See here.
As long as I am on the topic of morbid survey items sensitive to question wording, our survey asked the following familiar question concerning the “right to die”: “When a person has a disease that cannot be cured and is living in severe pain, do you think doctors should or should not be allowed by law to assist the patient to commit suicide if the patient requests it? 57 percent said “doctors should be allowed,” and 42 percent said “doctors should not be allowed.” As Joshua Green and Matthew Jarvis explore in their chapter in our book, the response patterns to euthanasia questions will often differ based on framing. Framing that refers to “severe pain” and “physicians” will often lead to higher support for ending the patient’s life, while including the word “suicide” will dramatically lower support. Larger majorities, unsurprisingly, support a terminally ill patient’s right to refuse life-prolonging medical treatment than would support active euthanasia or physician-assisted suicide. With all these caveats, it seems pretty clear that support for euthanasia is substantially greater today than it was thirty years ago, but it is difficult to discern any consistent pattern over the last decade. Several polls show growing support while others suggest support has reached a plateau or slightly reversed.
In addition to these often asked questions, we included some original ones on our survey as well, specifically to test how different frames might affect response patterns. For example, we asked the following question about torture: “Do you think the U.S. military should be allowed to torture those who may have been involved with acts of terror?” 36% said “yes” and 62% said “no.” This rate of response is consistent with other surveys with more qualified wording, such as the Gallup question: “Would you be willing or not willing to have the U.S. government do each of the following to combat terrorism? How about torture known terrorists if they know details about future terrorist attacks in the United States? 39% said yes in 2005; 45% said yes in October 2001. See here. Despite the absence of words and warnings like “known terrorist” or “future attacks”, the response patterns appear similar in our survey.
That division in the population was reversed for the other terrorism-related question we asked: “Should non-citizens suspected of terrorism and detained in U.S. military prisons be allowed to challenge their detentions in the U.S. civilian court system?” 38% said “yes” and 60% said “no.” Given the recent announcement of the impending trial of Khalid Sheikh Mohammed I suspect we will soon see similar polls, and it will be interesting to see whether the salience of the issue shifts opinion one way or the other.
Tamerlane says:
Off topic but important: As posters on an earlier topic have noted, the Volokh Conspiracy has been broken since at least 9:00 AM this morning. It’s impossible to scroll past a certain point in the post dealing with this administrations turpitude in nominating judges.
November 16, 2009, 2:41 pmRichard Aubrey says:
I suspect the opinion polls will be modified by both KSM’s actual actions and words during the trial and the government’s actions and words.
November 16, 2009, 2:45 pmFor example, if KSM says, “I did it and I’m glad, and I’d do it again.”, he’d be repeating himself. Or, no, what I meant is that the result in polling would be different than if he claimed he hadn’t done it.
If the government is seen as over-eager to turn over classified materials to Ramsey Clark, Ron Kuby and Lynn Stewart, the public may have second thoughts about the whole thing, independent of the issue of the trial as trial.
yankee says:
Did you ask any questions about what the respondents considered to be “torture”? That was the focus of the torture debate during the Bush administration, with Republicans arguing that waterboarding, stress positions, etc. were not really “torture,” just “enhanced interrogation techniques.” It would be interesting to know what the public thinks “torture” means when they say whether or not it should be allowed.
November 16, 2009, 2:46 pmbyomtov says:
“When a person has a disease that cannot be cured and is living in severe pain, do you think doctors should or should not be allowed by law to assist the patient to commit suicide if the patient requests it?
This seems like a very poorly worded and confusing question. What exactly does a “yes” or “no” mean?
I would not put any stock at all in the answers to this.
November 16, 2009, 2:54 pmgeokstr says:
Was this question broken down by liberal vs conservatives, or Democrats vs Republicans? If not, too bad.
I would contend that the reason for the swing with McVeigh would be that all those on the right who favored the death penalty anyway would still be so inclined, while many of those leftwingers who claimed to be totally against it would be happy to make an exception for the “crimes” of those they perceive to be on the right, like McVeigh, Nixon, Bush/Cheney or Palin.
November 16, 2009, 3:13 pmRob Robinson says:
Or, you know, for the fact that McVeigh killed not one, but 168 people, and thus meets their higher threshold for what warrants the death penalty.
Naturally, you go instead for the interpretation that allows you to fill in your Mad Libs script.
November 16, 2009, 3:23 pmRichard Aubrey says:
It would be interesting to ask how many of those who opposed LWOP as an alternative to the DP did so because they did not believe the guy would actually be in prison for life.
November 16, 2009, 3:23 pmIOW, is LWOP a code for letting him out when the authorities think nobody’s looking?
Perhaps you could initiate the question by making it clear we’re talking about some incredibly unlikely hypothetical where LWOP actually means the guy never gets out.
LarryA says:
Not having seen the survey, I would presume that the resposes were “should be allowed” and “should not be allowed” instead of a “yes/no.”
November 16, 2009, 3:27 pmSteve says:
Richard, is there some kind of long track record of LWOP criminals getting released “when nobody’s looking”?
November 16, 2009, 3:36 pmHouston Lawyer says:
People used to get sentenced to “life”. I don’t know when “life” became effectively 14 years or so. So now it is “life without parole”. Why should people trust that that will always mean that they will die in prison?
I miss the prison rodeo. When they announced the name of the contestant, they always gave the length of his sentence. They didn’t announce the crime though, since children were in attendance.
November 16, 2009, 4:01 pmFlash Gordon says:
A life without parole sentence should not exist as a possibility, in my view. If someone is so bad and/or so dangerous that he or she can never, ever be allowed out of prison, that seems to be as strong an argument for the death penalty for that person as can be made. The only reason for LWOP to exist at all is to create an option for opponents of the death penalty when even they agree that certain crimes separate the criminals who committed them from the rest of mankind for all time.
If LWOP is to exist then separate prisons should be constructed for those receiving that sentence, with 100% of the cost of running those prisons paid by death penalty opponents. This would be entirely appropriate since such prisons would not exist for the good of the public in general but only for the benefit of the death penalty opponents with a desperate need to feel good about themselves by keeping alive those criminals that are so depraved and dangerous they can never be allowed to live among decent people.
For the rest of us, we accept the reality that if we do not believe someone deserves the death penalty then we necessarily agree that someday that person will again be free to live among us.
November 16, 2009, 4:16 pmRichard Aubrey says:
Steve.
We’re talking about an opinion poll. We don’t need a long track record. We only need one case known to the person answering the question.
Given our 24-hour news service, that needn’t be a huge number in the aggregate.
However, as an earlier poster mentioned “life” means, effectively, fourteen years.
Any reason to think LWOP is not going to similarly evolve?
Do you know of a long history of sentencing not evolving and remaining as originally legislated?
But when you read of some outrage here or there, the perp is frequently out of jail after X number of years, of a sentence of 2X or 3X.
November 16, 2009, 4:17 pmIs there a reason to trust the authorities, the legislators, and the judges when they pinky-swear that neither they nor subsequent folks in their position will change this?
Of course not.
Can you absolutely insist that there will not be another judge like Rose Bird, except wrt LWOP? Of course you can. Because it wouldn’t bother you if you could see LWOP on that basis and then see it eviscerated.
Richard Aubrey says:
crap
November 16, 2009, 4:17 pm“…sell LWOP on that basis….”
Bama 1L says:
Why don’t people take treason seriously any more?
November 16, 2009, 4:39 pmJames T. Carrington says:
You can still free someone in prison if they didn’t commit the crime… capital punishment not so much.
November 16, 2009, 4:48 pmRichard Aubrey says:
James.
November 16, 2009, 5:00 pmTrue, but not relevant to the question.
I suppose I could say that if the guy is sentenced to life and kills somebody in the prison, or if he kills somebody after being let out, or escaping, you can’t resurrect that person.
Equally true. Equally relevant…to some other question.
Ben P says:
Frankly I think this is a little bit silly.
Are you really suggesting that there’s absolutely no set of circumstances in which a criminal might be sent to prison for the rest of their life, but should not be executed? It’s also notable that the federal prison system doesn’t have parole at all. That doesn’t necessarily mean that sentance times are fixed, they just don’t have the concept that ones sentance is “7 years then we’ll consider whether you can get out every year for another 5 years”
If for no reason other than I think that a diversity of punishments is a useful thing for prosecutors to fit the circumstances of the crime, then life sentences are worth having.
For the same reason mentioned above I really don’t have a problem with the death penalty. I think it serves a valid purpose in the justice system, although its severity does merit some additional safeguards in my opinion. But, to be honest, few things make me start to reconsider that opinion more than the naked retributionist opinions that appear whenever the death penalty is discussed in certain forums.
November 16, 2009, 5:12 pmBen P says:
Maybe I’m just confused because there’s so many different standards, but isn’t that exactly what LWOP means?
In the federal system there is no parole, so life is life. But year terms don’t typically mean that number of years because there’s various and sundry policies that undermine it. Double time for good behavior, credits for education etc etc etc.
In the state systems I’m familiar with “Life” generally actually means a “sentance with a minimum of 20 (or 25) years, and a maximum of life.” Theoretically that means parole hearings begin in 20 years. In reality that means parole hearings begin in some lesser time. (I don’t know the truth of 14 years, but it’s plausible so I’ll accept it as true).
Whereas, life without parole means no parole hearings. So life is life. he only gets out if clemency is granted, or some special circumstances exist.
so maybe we have a terminology problem, and I’d accept your point if you meant the study ought to have more directly qualified between a true “life sentance” of LWOP and a “life sentance” that is 14 years, but I’m confused if you’re actually making the assertion that LWOP is 14 years.
November 16, 2009, 5:20 pmyankee says:
One can say the same thing the other way around. Is there any way we can trust the death penalty supporters when they pinky-swear that only people who really really deserve it will get it? No chance of it being used on, say, nonviolent drug dealers? (see subsection (b)(1))
November 16, 2009, 5:29 pmSuperSkeptic says:
I don’t know, not to denigrate your work here (which, arguably, I’m about to do anyhow) but I just don’t see a point to all this polling and what not. Nothing here we don’t already know by living in the country and conversing with those around us. Unless the point is to antagonize us about SCOTUS’ opinions on the matters… which obviate any consideration of what % of us want what anyway. Or, unless the purpose is to allow politicians and “policy experts” to manipulate us and our laws in an unprincipled way for their own gain…
Besides, and as people repeatedly keep pointing out, the results, i.e., the numbers, change depending on how you characterize the questions – so there’s really nothing concrete here and the satisfaction of epiricism is illusory.
November 16, 2009, 5:41 pmTweets that mention The Volokh Conspiracy » Blog Archive » Terror, Torture, and Death in Public Opinion -- Topsy.com says:
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November 16, 2009, 5:42 pmFlash Gordon says:
Ben P says:
Are you really suggesting that there’s absolutely no set of circumstances in which a criminal might be sent to prison for the rest of their life, but should not be executed?
Yes. Well, if by “the rest of their life,” you mean it. No hope of ever getting out. If someone is so bad they must be kept alive in a cage for decades until they die, I think that is monstrous and indefensible. I suppose you would not object to putting a sign over the gate that says, “Abandon all hope ye who enter here.”
If it is right to inflict that sort of punishment on someone, the non-silly thing to do is to recognize that such a person deserves the death penalty, and should get it.
November 16, 2009, 5:45 pmBen P says:
and you don’t think some others might view it differently? I don’t think there’s any shortage of “lifers” that would rather not be put to death because of your view that life in prison constitutes something “monstrous.”
I don’t see any real inherent conflict in saying that in a given case the significant possibility of recidivism (Future harm on society) merits separating the criminal from society indefinitely but that what the criminal has done in the past doesn’t merit execution. The two just aren’t equivalent.
Although I admit I’m making a bit of a hyperbolic point, what you’re arguing is tantamount to arguing that we might as well kill those with incurable mental illnesses that make them dangerous to those around them because there’s no substantial chance they can be “cured” and live outside of a supervised environment.
November 16, 2009, 6:01 pmPerseus says:
I’d just note that your torture question results seem to differ from those of Pew (which phrases the question differently).
November 16, 2009, 6:06 pmOren says:
Nate (can I call you Nate?) , can we see the cross correlations too? For instance, are those in favor of euthanasia more or less likely to support the DP?
I think there’s a lot to learn by looking at what beliefs seem to come together…
November 16, 2009, 7:38 pmcubanbob says:
I wonder how many of those polled would be in favor of the death penalty for the killers of one of their loved ones.
November 16, 2009, 9:01 pmBama 1L says:
Well, I wonder how many of those polled would be in favor of the death penalty for their loved ones.
November 16, 2009, 9:22 pmLeo Marvin says:
I’m sorry I missed that. In fact, there are lots of such TV shows I’d love to see:
“Inmate Idol”
“Supermax Survivor”
“Dancing With the Cons”
“Allenwood’s Next Top Model”
“Lifer Week on Jeopardy”
just to name a few.
November 16, 2009, 9:40 pmRichard Aubrey says:
LWOP means, or is said to mean, exactly what it says. I’m not sure I trust that now, considering it’s administered by judges and lawyers and legislators and such, but for the sake of discussion, let’s say it is.
November 16, 2009, 9:54 pmThat’s now.
The question is whether anybody with an IQ over twelve standing on a chair is convinced it will always be that.
Richard Aubrey says:
Yankee. Swearing there will never be an error is different from swearing there will never be a successful, organized movement to change something.
November 16, 2009, 9:58 pmIMO, if the DP is universally scrapped in favor of LWOP, sold stoutly by various activists as meaning never as in never, the next step–I expect the plans are already printed up and stapled–is to campaign against LWOP.
You’ll recall how many people claimed to be seriously in favor of fighting in Afghanistan as a foil to fighting in Iraq.
I believe that includes whassisname now POTUS, who have changed their collective tune.
Not a new scam, and obvious well in advance. So I would foresee the current LWOP proponents as opposing it within fourteen seconds of the end of the DP.
uberVU - social comments says:
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November 16, 2009, 10:08 pmyankee says:
I am not talking about errors, I’m talking about the expansion of the death penalty beyond its legitimate purview. As with the statute I cited, death penalty proponents have given us laws in which you can be sentenced to death for nonviolent drug dealing. Can death penalty proponents commit to the absence of an organized movement to expand the death penalty even further than that?
November 16, 2009, 10:10 pmRichard Aubrey says:
Yankee.
November 16, 2009, 10:23 pmI don’t know that proponents of the DP can commit to that So I expect that sort of indicates that those swearing LWOP will never mean anything but LWOP must also be disbelieved.
I think we agree.
On the other hand, there seems to be a tendency to reduce penalties–from the left, anyway–for heinous crimes, and I expect they will, after insisting on fidelity to LWOP, seek to end that, too. It would not be a mistake, a change of heart, or a new generation. I think it’s the current plan.
And, yes, I am suspicious of a lot of people.
So far, I haven’t been oversuspicious.
cubanbob says:
With the assumption of their loved one committing a capital crime? Perhaps more than you would think depending on the nature of the crime. If it makes you happy, just consider the death penalty a retroactive abortion.
November 17, 2009, 1:13 amcubanbob says:
Supreme Court has ruled that one does not have a right to be born, so why the outrage for death to drug dealers violent or otherwise? What do drug dealers do but sell poison to other people’s children. Indeed selling poison to other people’s children is a form of violence. It follows that if you have no right to be born you have no absolute right to life after you are born. If you wish to return the sanctity of life to those who are eligible for a death penalty for a non violent crime, then perhaps the road starts with elevating the life of those whose only crime is their mere existence.
November 17, 2009, 1:25 amRicardo says:
This is false, see Gonzales v. Carhart. Laws against murdering unborn children have generally been held constitutional also. The old common law rule was that one had to be born alive in order to possess any rights under law. Modern American jurisprudence and legislation (including the Roe and Casey decisions which made a distinction between viable and non-viable fetuses) has moved away from this concept.
November 17, 2009, 2:54 amRichard Aubrey says:
ricardo.
November 17, 2009, 7:50 amYet the supremes routinely overturn state laws purporting to make the distinction wrt abortion.
Dilan Esper says:
Did you ask any questions about what the respondents considered to be “torture”? That was the focus of the torture debate during the Bush administration, with Republicans arguing that waterboarding, stress positions, etc. were not really “torture,” just “enhanced interrogation techniques.”
The thing is, that was really a subterfuge. The truth is that the same folks who were eager to define the Bush torture techniques as “not torture” don’t particularly think much of the laws against torture in the first place (or think that they should be riddled with exceptions for situations where torture is seen as “necessary”).
If the Bush Administration had defended the techniques as “torture” rather than denying that they were torture, I suspect the same people would have supported the policy. The genesis of this position is that some people believe that these guys deserved to be tortured.
November 17, 2009, 6:33 pmAmerican Foreign National says:
Can it possibly be that American moral values have deteriorated to the point that we are discussing what constitutes torture? Instead of discussing such things and stalling with prolonged debates, perhaps a test trial at the Hague would clarify the matter. That is what civilized people do with accused war criminals isn’t it?
A valid test for what constitutes torture could be subjecting a political or military leader to such “enhanced interrogation techniques” and asking them under these conditions whether they are being tortured. I suspect that an appropriate and qualified answer would be forthcoming.
As a former veteren of US military service, including the first Gulf War, I’m disgusted with the conduct of the higher eschelon of the current military forces for permitting such controversial tactics.
December 25, 2009, 10:17 pmLies, Damned Lies, and Statistics (29): How (Not) to Frame Survey Questions, Ctd. « P.A.P. Blog – Human Rights Etc. says:
[...] 57 percent said “doctors should be allowed,” and 42 percent said “doctors should not be allowed.” As Joshua Green and Matthew Jarvis explore in their chapter in our book, the response patterns to euthanasia questions will often differ based on framing. Framing that refers to “severe pain” and “physicians” will often lead to higher support for ending the patient’s life, while including the word “suicide” will dramatically lower support. (source) [...]
March 1, 2010, 5:10 am