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Rough draft ms. for
It's Complicated w/ artwork |
It’s Complicated: Arguments For and
Against
Capital Punishment as a Deterrent
to Crime.
Grand Canyon University: JUS 615
Originally Submitted in November
2011
Perhaps no question in criminal
justice is as polarizing as the question of capital punishment. Arguments on both sides of the issue abound
with proponents arguing that the threat of a death penalty serves as a
deterrent (Radelet & Lacock, 2009) and that the imposition of the death
penalty satisfies a societal need for retribution and in some cases a need for
vengeance (Waller, 2009). Opponents of
the death penalty argue there is no evidence that capital punishment deters
crime any more than the threat of long-term incarceration. Some opponents even point to a so-called
brutalization effect that leads to increased homicide rates following each execution
of a condemned prisoner (Radelet & Lacock, 2009, p. 496). Finally, there are opponents who argue from a
moral standpoint that killing in response to killing is wrong and that doing so
sets a “savage example” for the rest of society (Thomson, 1999, p. 130).
A common argument put forth by
proponents of capital punishment is the claim that executing convicted murderers
serves as a deterrent to others who might contemplate murder or other
death-penalty eligible crimes.
Central
to deterrence theory is the flimsy notion that criminals act rationally and
give consideration to the risks and rewards associated with their illegal
activities.
When the consequences are
bad enough, the argument goes, individuals will be deterred from participating
in the illegal behavior (Flexon, Stolzenberg & D’Alessio, 2011).
There is evidence to suggest that this belief
is based largely on nothing more than public opinion.
In the mid-1980s, a Gallup Poll found that
62% of respondents felt the death penalty served as a deterrent to crime.
By 2006 the percentage of respondents who
felt that the death penalty served as a deterrent had dropped to 34% (Radelet
& Lacock, 2009, p. 492).
[i] It would seem public opinion is coming into
line with empirical fact as there does not appear to be widespread empirical
evidence that capital punishment acts as a deterrent to crime.
Radelet and Lacock (2009) refer to a National
Academy of Sciences study which concluded that “available studies provide no
useful evidence on the deterrent effect of capital punishment” (p. 493) and Thomson
(1999) notes that studies conducted in 1997 and 1988, “uniformly failed to
support deterrence theory” (p. 131).
Thomson (1999) refers to two
particular studies that offered a unique before and after snapshot of the
potential deterrent effect of capital punishment. Researchers looked at the deterrent effect of
executions in Oklahoma and Arizona before and after each state’s imposition of
a death sentence following a decade’s long hiatus (25 years in Oklahoma and
nearly 30 years in Arizona). In Oklahoma
there was a statistically insignificant decline in homicides following the
execution of Charles Troy Coleman in 1990.
In Arizona, slight increases in homicides were detected following the
execution of Donald Eugene Harding in 1992 (p. 133-134). In the end, the results were a wash.
What is the impact of capital
punishment on law enforcement? Research
in this regard is more difficult to extract from the available scholarship,
however some inferences can be drawn.
One school of thought subscribes to the notion that homicide crimes may
actually increase in the days and weeks following an execution (Colon, 2009,
Thomson, 1999). If this is the case,
then naturally local law enforcement is impacted when a death sentence is
carried out. An extension of this would
be death penalty cases that are particularly contentious, with agitated
factions on each side of the debate mustered in support or opposition to the impending
execution. Law enforcement is definitely
impacted by these situations because additional staffing is needed to meet the
potential threat of civil unrest.
Another area where the threat of
capital punishment intersects with the practice of local law enforcement is in
the area of specific crime statistics, or the incidence of particular crimes
relative to whether the death penalty is an option in the event a perpetrator
is apprehended.
Does the threat of a
death sentence make a criminal more desperate?
Are potential witnesses more likely to be killed in jurisdictions that
impose capital punishment?
While not
addressing this sort of relationship directly, Mannheimer (2011) raises the
issue of pre-meditation in connection with drive-by shootings in
California.
The upshot is that drive-by
shooters have made a calculated decision regarding the means by which they
carry out their crime and it begs the question: do criminals chose their
methods in relation to local death penalty statutes and if so, how does this
impact the response of local law enforcement?
[ii]
There can be little doubt that in
its current manifestation, capital punishment is not a significant deterrent to
crime, however arguments that the death penalty be abolished because it is not
a deterrent are narrow-minded and short-sighted.
For all the sound and fury surrounding the
issue, the death penalty is rarely imposed.
One commentator noted that 90 percent of those convicted of first-degree
murder in California are eligible for the death penalty but that only about 5
percent of all death penalty eligible murderers were actually sentenced to
death and that since 1978 California has only actually executed .08 percent of
those on death row (Colon, 2009).
[iii] Under this sort of sentencing scheme, one
might compare the potential deterrent effect of the death penalty to the
deterrent effect of police issued speeding tickets.
The percentage of drivers who actually
receive speeding tickets is a very small percentage of the total number of
drivers on the road, and thus most drivers speed because the odds of receiving
a speeding ticket are small; drivers take a calculated risk.
The same might be said for the potential
murderer who, stacking up his odds in a system where a very small percentage of
death-penalty eligible defendants are actually put to death, decides he’ll kill
the potential witness and take his chances with the hangman.
If every speeding driver received a speeding
ticket, speeding and accident rates would decline.
If every murderer were executed – promptly –
murder rates would likely decline.
The
message then is that capital punishment fails to serve as a useful deterrent
because it is so rarely imposed.
Perhaps
Thomson (1999) states the obvious when he notes that “the effect of executions
is complicated” (p. 136) but matters of life and death are seldom simple.
Deterrence – or lack of deterrence – as a
justification for retaining or abolishing capital punishment is a wobbly,
two-legged stool when used on either side of the argument.
One commentator uses the analogy of the
lighthouse that warns ships at sea of the impending danger posed by the rocky
shoreline.
Observers and commentators
can only frame their arguments in terms of those ships that actually hit the
rocks since no one can ever know of the untold numbers of ships that navigate
safely by as a result of the lighthouse and its constant warning signal
(Waller, 2009, p. 274).
[iv] The death penalty is little different; we only
know of those cases that went horribly wrong, we never will be able to
calculate how many potential murders were stopped as a result of the threat of
a sentence of death.
In the end, we
might all be better served if the question of capital punishment was revisited
and reformed with regard to the potential risk of killing of innocent suspects,
or its disparate use against the less affluent and people of color.
I do not advocate abolishing the death
penalty, however I do believe that things like verified guilt or innocence,
class, and racial status are tangible realities around which to frame an honest
debate, and that any alleged deterrent effect has proven to be more a matter of
personal feeling than tangible fact.
Postscript October 3, 2012
I
chose this essay as the first to post in my electronic portfolio blog because
the issue of capital punishment is so polarizing in our society and because, so
often people frame their perceptions and opinions of others within the context
of personal beliefs regarding things like the death penalty and abortion, criminal
justice reform and immigration issues.
Why not begin this blog with a previous paper that spells out where I am
currently in my thinking regarding the issue of capital punishment? To be sure, my thoughts and opinions are
evolving.
It
has been almost exactly a year since this paper was submitted as a weekly
assignment for a course entitled Critical
Issues in Criminal Justice at Grand Canyon University. Since that time, I have become even more
convinced that discussions regarding the deterrent effect of capital punishment
are largely pointless whether they come from advocates or opponents of capital
punishment. Many criminals are
irrational and thus unlikely to fully think through the potential consequences
of their actions. Furthermore, with
different sentencing regimes from one jurisdiction to another, it is likely
that some criminals aren’t even aware of the potential consequences at the time
of their crimes. Finally, given that
capital punishment is not applied consistently, it seems likely that some
criminals simply accept the odds and commit the crime.
At
this writing, I have just finished reading Ralph F. Voss’s book
Truman Capote and the Legacy of In Cold
Blood (2011), an outstanding, detailed exploration of Capote’s seminal work
of creative non-fiction – his “non-fiction novel” – the account of the killing
of four members of the Clutter family in a west Kansas town in the early 1960s
and the subsequent search for the killers, their trial and eventual
execution.
I read
In Cold Blood while in the army during the mid-1980s and
ironically, the officer I worked for had grown up in another small town in
Kansas and was all too familiar with the story and its impact on small town
life at the time.
Personally, I didn’t
read
In Cold Blood as much more than
a journalistic treatment of a hideously tragic crime on a par with Joseph
Wambaugh’s
The Onion Field, which I
read during that same period in my life.
[v] Thanks to Voss’s exploration of Capote’s
work, I have gained a better appreciation of the process of writing and perhaps
more importantly, I’m more aware of the various subtexts in the work,
especially Capote’s anti-capital punishment message, which I must confess, I
missed in my first reading of the book.
Perhaps it is time to revisit my worn copy of
In Cold Blood.
References
Colon,
S. (2009). Capital crime: How California’s administration of the death
penalty violates the eighth amendment. California Law Review, 97(5), 1377-1417.
Flexon,
J. L., Stolzenberg, L. & D’Alessio, S. J. (2011). Cheating the hangman: the effect of the roper v. simmons decision
on homicides committed by juveniles. Crime & Delinquency, 57(6), 928-949.
Kaufman,
S. B. (2011). Citizenship and
punishment: situating death penalty jury
sentencing. Punishment & Society, 13(3), 333-353.
Mannheimer,
M. J. Z. (2011). Not the crime but the
cover-up: a deterrence-based rationale
for the premeditation-deliberation formula.
Indiana Law Journal, 86(3),
879-937.
Radelet,
M. L., & Lacock, T. L. (2009). Do
executions lower homicide rates?: The
views of leading criminologists. The Journal of Criminal Law &
Criminology, 99(2), 489-504.
Thomson,
E. (1999). Effects of an execution on
homicides in California. Homicide Studies, 3(2), 129-150.
Voss,
R.F. (2011). Truman capote and the legacy of in cold blood. Tuscaloosa, AL: The University of Alabama Press.
Waller,
B.N. (2009). You Decide! Current debates in
Criminal Justice. Upper Saddle
River, NJ: Prentice Hall.
Wambaugh,
J. (1973). The onion field. New
York: Dell.
[i] I would
argue that deterrence ranks high in public opinion polls because high numbers
of respondents are personally frightened by the prospect of being executed for
a criminal offense and thus they naturally respond in accordance with that very
personal belief. I would further argue
that a decline in the number of respondents who view capital punishment as a
deterrent is the result of rising personal pessimism in response to a perceived
increase in crimes of all sorts, rather than the result of some widespread
lessening of personal fear of being executed.
In other words, respondents still fear the personal prospect of being
executed but they perceive crime as rampant and no longer hold the view that
capital punishment is a means of bringing crime rates down.
[ii]
Mannheimer (2011) notes that in California, a shooting would be dealt with
differently depending on whether the shooter was sitting on the curb
(second-degree murder) or sitting in a car (first-degree murder), because the
act of sitting in a car connotes premeditation on the part of the shooter, who
has presumably, weighed his options and decided it is more advantageous for him
to operate from a vehicle.
[iii] At the
national level, Kaufman (2011) notes that “the death penalty is used rarely” (p.
336) and goes on to point out that in 2002 over 14,000 homicides were recorded
in the U.S., with just 155 defendants sentenced to death as a result. Of those 155 sentences, 71 prisoners were
executed.
[iv] “We do
not have proof of the number of ships it saves, but we do not tear the
lighthouse down” (Waller, 2009, p. 274).
[v] Compared
to the Clutter family killers, the outcome for the Onion Field killers was
drastically different. Both died of old
age behind bars – one a pathetic recidivist after having been paroled and
rearrested, the other just this past August, having never left prison though
not for lack of trying.
