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Americans have argued over the death penalty since the early days of the republic. Today, high-profile cases provide frequent opportunities for debate between proponents and opponents of capital punishment. For example, in 1997, Timothy McVeigh was convicted and sentenced to death for the 1993 bombing of the federal building in Oklahoma City, which killed 168 people. The execution of Karla Faye Tucker in 1998 for the pickax murder of two people was the first execution of a woman in Texas since 1863 and the second nationally since 1984. In addition, private concerns Americans have about the effect of violent crime on their neighborhoods and families have led many to decide that the death penalty is an acceptable form of punishment and to support politicians who favor it. Public or private, the debate over the death penalty revolves around three questions: 1) Is capital punishment allowable under the U.S. Constitution? 2) Is it moral? 3) Does it deter crime more than life in prison? The focus of this anthology is on the third question.
According to data collected by the federal government, between 1930 and 1968, 3,859 persons were executed in the United States under civil authority. After 1950, the number of executions consistently declined from 105 in 1951 to 2 in 1967-and to zero from 1968 through 1976- primarily due to legal challenges to the death penalty. These challenges culminated in 1972 when the Supreme Court, in the case of Furman v. Georgia, ruled that the death penalty was unconstitutional as practiced at the time. The Court found that the arbitrary application of the sentence by juries violated the Eighth Amendment's ban on cruel and unusual punishment. The 5-4 decision effectively struck down all existing state and federal capital punishment statutes. In response, thirty-five states quickly wrote new capital punishment laws that attempted to meet the requirements for fairness and consistency established by the Court. Within four years, six hundred people had been sentenced to death under the new statutes, though none were executed because states were unsure of the constitutionality of their death penalty legislation. In 1976, the Supreme Court reversed its course and ruled that "the punishment of death does not invariably violate the Constitution." The nearly ten-year moratorium on executions ended in 1977 when Utah executed convicted murderer Gary Gilmore by firing squad; since then more than 350 persons have been put to death. As of 1997, more than 3,200 persons are on death row in thirty-four states (thirty-eight states have capital punishment statutes, but four of them have not imposed sentences). All of these prisoners have been convicted of murder; 98 percent are men.
The United States is the only Western democracy that allows capital punishment, and the sentence has widespread popular and political support. In a 1997 Time magazine poll, 74 percent of those surveyed said they favor capital punishment for persons convicted of serious crimes. This number, though, masks the conflicted attitudes Americans have toward the death penalty. The same poll reveals that when Americans are asked whether they think vengeance is a legitimate reason to execute a murderer, 60 percent do not. Additionally, a slight majority (52 percent to 45 percent) do not believe the death penalty deters crime. Most Americans may want killers executed, but a majority are uncomfortable with the two primary reasons for capital punishment-vengeance and deterrence.
The theory of deterrence is based on the idea that the threat of punishment must be severe enough to counter the benefits or pleasures that the criminal would receive from the crime. In addition, the punishment must be administered swiftly so that potential criminals will see a clear cause and- effect relationship between the crime and the punishment. When punishment deters potential criminals from committing crimes, it is called "general deterrence." Another kind of deterrence, "specific deterrence," refers to the inability of convicted criminals to commit further crimes as a result of their punishment. There is no doubt that capital punishment serves as a specific deterrent: The executed criminal will never kill again. However, experts and others have long debated whether capital punishment is a more effective general deterrent than life in prison.
Social scientists have examined the general deterrent effect of capital punishment since the early twentieth century. Early studies, including those by Thorsten Sellin, took two approaches: Some studies compared homicide rates in states with and without capital punishment; others compared homicide rates for states before or after the reintroduction or abolition of capital punishment. Researchers found that murder rates in neighboring states with and without the death penalty were not significantly different. They also found that homicide rates in states did not increase after the abolishment of the death penalty or decrease after the reinstatement of the sanction. More recent comparative studies have come to the same conclusion, supporting Sellin's contention in 1967 that "the presence of the death penalty in law and practice has no discernible effect as a deterrent to murder."
In the mid-1970s, these results were countered by Isaac Ehrlich, a statistician who, after looking at national homicide rates between 1930 and 1970, estimated that each execution deterred between seven and eight homicides. Many researchers have tried to duplicate Ehrlich's results, but most of them have been unsuccessful. It has proven extremely difficult to demonstrate a relationship between executions and crime rates nationwide because of the large number of sociodemographic, legal, and historical variables. Criminologist Frank Zimring has suggested, for example, that the omission of key variables in Ehrlich's studies, including the increased availability of guns and the decline in time served in prison for homicide, calls the results into question. Typically, death penalty opponents claim that Ehrlich's results have been proved invalid, while proponents assert that the results are inconclusive. In the end, social science has been unable to either conclusively support or disprove the theory that capital punishment deters crime.
Some proponents of capital punishment maintain that social science is incapable of determining the effectiveness of capital punishment because the data is rough and incomplete and because social science lacks a theory adequate enough to interpret the data. Arguments based on common sense, they contend, are enough to prove that capital punishment is effective.
The most powerful argument for the deterrent effect of the death penalty comes from the commonsense notion that people fear death more than life in prison. "What is feared most deters most," says Ernest van den Haag, a professor at Fordham University and a noted proponent of capital punishment. Once in prison, virtually all convicted murderers seek to avoid execution by appealing to reduce their sentence to life in prison. To van den Haag, this is evidence that the death penalty is feared more, and therefore deters more, than a life sentence. Moreover, he argues that even though social science may not be able to prove conclusively that the death penalty deters murder (at least in statistically significant amounts), capital punishment has surely prevented some murders. Many believe this reason enough to use it.
Proponents of capital punishment also contend that the effects of a death sentence are diluted when the execution is not carried out in a reasonable period of time after sentencing. It currently takes an average of ten years from conviction to execution because prisoners abuse the writ of habeas corpus, which guarantees appeals of sentences and convictions in state criminal cases. Critics contend that this delay eliminates the cause-and-effect relationship between crime and punishment that is necessary if punishment is to deter future crimes. Some argue that if the appeals process were reformed, the deterrent effect of capital punishment would be more evident and provable.
Some opponents of the death penalty argue that instead of deterring crime, capital punishment actually increases murder rates because the state, through executions, devalues human life. Over 150 years ago, a Massachusetts state representative, Robert Rantoul, came to this conclusion after looking at the proportion of executions to murders in Massachusetts and several European countries. Over one hundred years later, researchers William Bowers and Glenn Pierce studied homicide records in New York State between 1907 and 1963 and found that the murder rate increased slightly in the months following an execution. To explain this phenomenon, Bowers and Pierce developed what is called brutalization theory, which reasons that state-sanctioned executions brutalize the sensibilities of society, making potential murderers less inhibited.
Many opponents of the death penalty also make the argument that because most murders are unplanned and impulsive, murderers are not deterred by capital punishment. In such an emotional state, they maintain, a murderer is unlikely to think about the distant possibility of execution. As Jesse Jackson explains, "The emotionally charged environment in which these crimes take place do not suggest a coolly calculating murderer weighing his options."
People support or oppose capital punishment for complex, often emotional, reasons. For supporters it can be an issue of public safety or political pragmatism. For opponents it can be a sense of justice or outrage at the inequality in sentencing. Ultimately, capital punishment may be an issue of morality. Although van den Haag believes that the death penalty deters more than other punishments, he would be in favor of capital punishment "on grounds of justice alone." He states: "To me, the life of any innocent victim who might be spared has great value; the life of a convicted murderer does not." For van den Haag and those who share his views, retribution in the form of capital punishment is a morally justifiable and necessary response to some crimes. To others, capital punishment is always immoral. Both sides firmly believe they are right.
Robert M. Baird and Stuart E. Rosenbaum, Punishment and the Death Penalty: The Current Debate. Amherst, NY: Prometheus Books, 1995.
Hugo Adam Bedau, The Death Penalty in America: Current Controversies. 4th ed. New York: Oxford University Press, 1997.
Walter Berns, For Capital Punishment: Crime and the Morality of the Death Penalty. Lanham, MD: University Press of America, 1991.
Committee on the Judiciary, Innocence and the Death Penalty: Assessing the Danger of Mistaken Executions. Washington, DC: GPO, 1994.