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Is the Death Penalty a Deterrent?

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Introduction

No other topic in the field of corrections receives more attention than the death penalty (del Carmen). The United States is one of the few democracies in the world that still imposes a punishment of death, much due to the strength of public opinion. Since 1936, the Gallup Poll revealed only one year (1966) in which a minority of the population favored capital punishment, with only 45 percent support. Support has remained fairly constant at around 70 percent through the year 2000 (National Opinion Research Center).

Many supporters’ arguments for the death penalty derive from the deterrence hypothesis, which suggests that in order to encourage potential murderers to avoid engaging in criminal homicide, society needs capital punishment. In other words, “states with the death penalty should have lower homicide rates than states without the death penalty” (Void, Bernard, and Snipes 201). In 2000, 42 percent of the United States population felt the death penalty acts as a deterrent to other potential murderers (National Opinion Research Center).

Scholars have long believed that if the public were more knowledgeable on the death penalty and its effects, support would not be so high (Shelden). Former Supreme Court Justice Thurgood Marshall, in his concurring opinion in the case of Furman v. Georgia (1972), stated that American citizens know almost nothing about capital punishment. Further, in what has become known as the “Marshall Hypothesis,” he stated that “the average citizen” who knows “all the facts presently available regarding capital punishment would…find it shocking to his conscience and sense of justice” (Walker, Spohn, and DeLone 230). For example, a Gallup poll was given asking whether respondents supported the death penalty, then asked if they would support it if there were proof that the deterrence theory was incorrect. Twenty-four percent of the respondents showed a change in their support of capital punishment (Radelet and Akers).

Background

Capital punishment in the United States has gone though periods in which most states either abolished it altogether or never used it, and periods in which it was commonly used (Shelden). The landmark Supreme Court decisions of Furman v. Georgia (1972) and Gregg v. Georgia (1976) rekindled the longstanding controversy surrounding capital punishment (Shelden). In Furman v. Georgia, the Court found that the death penalty, as it was currently being administered, constituted “cruel and unusual punishments”, in violation of the Eighth and Fourteenth Amendments to the United States Constitution. This decision suspended all capital punishment in the United States, however, left leeway for states to revise their current practices. Appeals began flowing through the Court and within four years of Furman, the Court made perhaps its most significant ruling on the matter (Shelden).

In the case of Gregg v. Georgia (1976), the Court ruled, “A punishment must not be excessive, but this does not mean that the states must seek the minimal standards available. The imposition of the death penalty for the crime of murder does not violate the Constitution.” The moratorium was lifted and a path cleared for the first execution to take place in ten years. After a de facto abolition of capital punishment, it was reinstated in 1977 with the execution of Gary Gilmore by a firing squad in Utah (Shelden). Currently, 38 states, the federal government, and the United States military continue to execute those convicted of capital murder. Illinois and Maryland have moratoriums placed on the death penalty in their jurisdictions (Death Penalty Information Center).

As recent as 2000, a number of jurisdictions in the United States have questioned the fairness and effectiveness of the death penalty. For instance, in January of 2000, Governor George Ryan of Illinois declared a moratorium on all executions after the state had released thirteen innocent inmates from death row in the same time it had executed twelve. Ryan then appointed a blue-ribbon Commission on Capital Punishment to study the issue in greater detail. On January 10, 2003, Ryan pardoned four death row inmates after lengthy investigations revealing abuse of defendants’ rights, including torture during interrogation (Death Penalty Information Center).

The following day (also his last day in office) Ryan granted clemency to all of the remaining 156 death row inmates in Illinois, as a result of the flawed process that led to these sentences. According to the Death Penalty Information Center, “Ryan’s decision to grant today’s commutations reflects his concern that Illinois’ death penalty system lacked uniform standards designed to avoid arbitrary and inappropriate death sentences.” It should be noted that the 156 clemencies did not result in the release of the inmates, since many still face life in prison.

Deterrence Theory

According to Siegel, deterrence is defined as “the act of preventing a crime before it occurs by means of the threat of criminal sanctions; deterrence involves the perception that the pain of apprehension and punishment outweighs any chances of criminal gain or profit” (616). The theory of deterrence stemmed from the work of Cesare Beccaria, who has been known as “the leader of the classical school of thought” (del Carmen 21). Beccaria received a degree from the University of Pavia in Italy in 1758. Upon graduating, he embarked on working as a mathematician, but soon became interested in politics and economics. Beccaria met regularly with Allessandro Verri, an official of the prison in Milan, and his brother Pietro Verri, an economist, in a group of young men who met to discuss philosophical and literary topics (Void, Bernard, and Snipes).

In March 1763, Beccaria was given the responsibility of writing an essay on the topic of penology. With little knowledge in the field, he went to the Verri brothers for assistance and drafted the essay. In 1764, his influential essay, On Crimes and Punishments was published (del Carmen). He listed ten principles proposing various reforms to make criminal justice practices more logical and rational (Void, Bernard, and Snipes). Becarria’s work is known to be one of the first wails for reform in the treatment of criminals. His concept that “the punishment should fit the crime,” was a major contribution to the classical school of thought.

Beccaria felt severe punishment was not necessary and the only reason to punish was to assure the continuance of society and to deter others from committing crimes. Further, deterrence stemmed from appropriate, prompt, and inevitable punishment, rather than severe punishment. Regarding the death penalty, Beccaria believed it did not deter others and was an act of brutality and violence by the state (del Carmen). Finally, in one of Beccaria’s ten recommendations he argued that punishments that include excessive severity not only fail to deter crime, but actually increase it (Void, Bernard, and Snipes).

The theory of deterrence was neglected for about a century. Then, in 1968, criminologists sparked an emergence of interest when Jack P. Gibbs published the first study that attempted to test the deterrence hypothesis (Void, Bernard, and Snipes). The certainty of punishment was defined, by Gibbs, as the ratio between the number of prisoners admitted for a given year and the number of crimes known to police in the prior year. Gibbs defined severity of punishment as the mean number of months served by all persons convicted of a given crime who were in prison in that year. His research found that greater certainty and severity were associated with fewer homicides for the year 1960. Gibbs concluded that both certainty and severity of imprisonment might deter homicide.

Charles R. Tittle analyzed similar statistics regarding certainty and severity of punishment for the seven “index offenses” in the FBI Uniform Crime Reports (Void, Bernard, and Snipes). Tittle concluded that the certainty of imprisonment deters crime, but that severity only deters crime when certainty is quite high (Void, Bernard, and Snipes). In 1978, the National Academy of Sciences produced a report that concentrated on previous deterrence research and found that more evidence favored a deterrent effect than evidence that was against it.

Void, Bernard, and Snipes stated that the deterrent effectiveness of the death penalty is probably the single most researched topic in the area of criminology. In 1998, Daniel Nagin reviewed studies of deterrence and argued that deterrence research has evolved into three types of literature. Of the three, one of these types identified examines criminal justice policies in varying jurisdictions and the crime rate affiliated with the policies to determine if there is a deterrent effect. Void, Bernard, and Snipes recognized that a large number of studies have been conducted regarding this issue; however the results have been inconclusive.

For example, the deterrence hypothesis implies that death penalty states should have lower homicide rates than states without the death penalty. As Gibbs and Tittle’s research showed, however, death penalty states have considerably higher murder rates than non-death penalty states. Void, Bernard, and Snipes conclude that, more than likely, this results from states implementing the death penalty due to higher murder rates. Radelet and Akers state that because of little empirical support for general deterrence and the death penalty, most criminologists have concluded that capital punishment does not reduce crime. Furthermore, several researchers have found that the death penalty actually increases homicides (Bailey).

Thorsten Sellin, one of the leading authorities on capital punishment, has suggested that if the death penalty deters prospective murderers, the following hypothesis should be true:

(a) Murders should be less frequent in states that have the death penalty than in those that have abolished it, other factors being equal. Comparisons of this nature must be made among states that are as alike as possible in all other respects – character of population, social and economic condition, etc. – in order not to introduce factors known to influence murder rates in a serious manner but presently in only one of these states.

(b) Murders should increase when the death penalty is abolished and should decline when it is restored.

(c) The deterrent effect should be greatest and should therefore affect murder rates most powerfully in those communities where the crime occurred and its consequences are most strongly brought home to the population.

(d) Law enforcement officers would be safer from murderous attacks in states that have the death penalty than in those without it.

Sellin’s research indicates that not one of these conjectures is true. Further, his statistics illustrate that there is no correlation between the murder rate and the presence or absence of capital crimes. For example, Sellin compares states with similar characteristics and finds that regardless of the state’s position on capital punishment, they have similar murder rates. Finally, Sellin’s study concluded that abolition and/or reintroduction of the death penalty had no significance on the homicide rates of the various states involved.

Summary

The death penalty has long been one of the most debated issues in the American justice system. Most advocates claim that the punishment protects society by deterring murderers from repeatedly committing their crimes. Additionally, proponents proclaim that criminals have a better chance of choosing not to commit murder if the death penalty is a possible sanction. On the other end, opponents of the death penalty argue that no study has convincingly shown enough evidence of such a deterrent effect. In fact, they argue that most studies have not only shown the lack of a deterrent effect, but have conversely suggested that punishment by death might even have a brutalization effect. In other words, they suggest that criminal executions brutalize society by legitimating the killing of human beings, which ultimately leads to an increase in the rates of criminal homicide.

Deterrence basically refers to the ideology that punishing persons who commit crime prevents other similarly disposed individuals from doing so. There are two existing types of deterrence, specific and general. Death penalty proponents argue for the importance of specific deterrence and its preventive effect in protecting society from a second crime from the same offender, who could easily evade or be released while imprisoned. In other words, this simply means that the death penalty takes away the opportunity for the offender to commit murder again. This type of deterrence obviously only deters the concerned offender. In this case, it is certain that punishment by death acts as a specific deterrent in 100% of the cases since a deceased offender will never have the opportunity to recidivate.

As for general deterrence, it assumes that the thought of the death penalty as a potential cost of offending acts as a form of dissuasion. It is believed that punishment by death is considered by offenders when they are committing their acts, which would then convince them to not act and therefore result in a lesser probability of them committing their crimes. Additionally, proponents of the death penalty argue that such a punishment is the only solution to deter imprisoned offenders from killing other inmates or guardians while incarcerated. Without the death penalty as a possible sanction, a murderer incarcerated for life would not have anything to lose by killing again. With the death penalty as a possibility, the inmate has his life to lose.

Works Cited

Bailey, William C. “Deterrence, Brutalization, and the Death Penalty.” Criminology 36. 4 (1998): 711-33.

Cockburn, Alexander. “Hate Versus Death.” Nation 272, 10 (2001): 9-11.

Death Penalty Information Center. What’s New, 2008 https://www.deathpenaltyinfo.org

del Carmen, Alejandro. Corrections. Madison, Wise: Coursewise Publishing, 2000

Chiricos, Theodore G. and Gordon P. Waldo. “Punishment and Crime: An Examination of Some Empirical Evidence.” Social Forces 18. 2 (1970): 200-17.

Furman v. Georgia, 408 U.S. 238, 1972.

Gregg v. Georgia, 428 U.S. 153, 1976.

Nagin, Daniel S. “Criminal Deterrence Research at the Outset of the Twenty-First Century.” in Michael Tonry, ed., Crime and Justice: A Review of Research, University of Chicago Press, Chicago, 1998, p. 1.

National Opinion Research Center. General Social Surveys, 1972-2000. Storrs, CT: The Roper Center for Public Opinion Research, University of Connecticut, 2001.

Radelet, Michael L.. and Ronald L. Akers. “Deterrence and the Death Penalty: The Views of the Experts.” Journal of Criminal Law & Criminology 87. 1 (1996): 1-14.

Sellin, J.T. (1959) The death penalty. Philadephia, PA: American Law Institute.

Shelden, Randall G. Controlling the Dangerous Classes: A Critical Introduction to the History of Criminal Justice. Needham Heights, Mass.: Allyn & Bacon, 2001.

Siegel, Larry J. Criminology. 7th ed. Belmont, Calif.: Wadsworth, 2000.

Tittle, Charles R. “Crime Rates and Legal Sanctions.” Social Problems 16 (1969): 409-23.

Void, George B., Thomas J. Bernard, and Jeffrey B. Snipes. Theoretical Criminology. 5th ed. New York, N.Y.: Oxford University Press, 2002.

Walker, Samuel, Cassia Spohn, and Miriam DeLone. The Color of Justice: Race, Ethnicity, and Crime in America. 2nd ed. Belmont, Calif.: Wadsworth, 2000.