Justifications for Capital Punishment (Parts II and III) Deterrence and Incapacitation

Deterrence  There are at least two meanings:  1) Special (or specific) Deterrence aimed at creating fear in the offender by punishment so that he or she will not commit another crime  2) General Deterrence aimed at creating fear in all members of society by sending a message through punishment of an offender so that we will not commit crimes  First, it is obvious that the death penalty is NOT A SPECIFIC DETERRENT -- Why?  If the offender is DEAD, he or she cannot be afraid of committing another crime  So the only issue is whether the death penalty is a GENERAL DETERRENT  That is, does it cause fear in US that stops US from committing murder?

The Logic of Deterrence  Gosh, it makes sense at least! …here’s an example  How do you stop a dog from peeing on the floor?

The Logic of Deterrence  Why do we punish a dog for peeing on the floor?  To make it not do it again (PREVENTION)  We assume dogs learn through punishment …  As do cats, other animals, and PEOPLE! …

The Logic of Deterrence  When it comes to humans, we assume:  People are hedonistic (pleasure-seeking)  People are rational (can think in advance of behavior)  People want to avoid pain such as punishment (deterrence)  So the thought of death should deter … and seeing punishment administered to others should deter

The Logic of Deterrence  BUT …  Just because deterrence is logical, does this mean that the DEATH PENALTY IS ACTUALLY A DETERRENT ???  (What does the evidence say?)  Hint: it is not good …

Quotes from Supporters...  “… we must conclude that we lack strong statistical evidence that capital punishment deters … There is no such evidence for nondeterrence either. The statistics available are simply inconclusive...” (Pojman, 1998)  “Statistics have not proved conclusively that the death penalty does or does not deter murder more than other penalties” (Van den Haag, 1997)  Meanwhile, virtually all experts agree that the death penalty DOES NOT DETER would-be MURDERERS

Does it Matter to People? (Deterrence and Public Support)  Historically, deterrence has been a major reason cited in public opinion polls as to why people favor capital punishment  (e.g., to stop others from committing murder)  But recently, it is not widely cited by supporters  Perhaps people know the evidence? …  (That the death penalty is NOT considered a deterrent to murder according to the scientific evidence)

Key facts to remember up front …  About 1 / 2% of aggravated murderers (death eligible killers) get the death penalty  How could it be a deterrent when it is not used?  (Evidence about deterrence suggests that most important element is CERTAINTY OF PUNISHMENT – for punishment to deter, it must be likely to happen)

Summary of Evidence  Studies tend to compare:  States with death penalty and without …  Nations with death penalty and without …  Jurisdictions before and after having death penalty …  Effects of highly publicized executions … ETC! …  What would you expect to find in these studies?

Summary of Evidence  States WITH death penalty have HIGHER murder rates than those without …  Nations WITH death penalty have HIGHER murder rates than those without …  Effects of imposing and removing death penalty have OPPOSITE effect expected …  NO CONSISTENT EVIDENCE of DETERRENCE and MORE EVIDENCE OF “BRUTALIZATION”

States  Murder rates % LOWER in states WITHOUT the death penalty  South has HIGHEST murder rate and MOST executions:  2002:  South: 6.8 per 100,000 (68 executions in 2002)  West: 5.7 per 100,000 (1 execution in 2002)  Midwest: 5.1 per 100,000 (2 executions in 2002)  Northeast: 4.1 per 100,000 (0 executions in 2002)

States  Average murder rate in 1999 of DEATH PENALTY STATES was 5.5 per 100,000  Average murder rate in 1999 of NON-DEATH PENALTY STATES was 3.6 per 100,000

States  Gaps in murder rates grew between 1990 (4%) and 2002 (36%)

Nations  Canada abolished capital punishment in 1976  2001 homicides (554) were 23% lower than 1975 homicides (721)  Homicide rates in Canada about 3 times lower than in US  US: 5.7 per 100,000 (1999) (98 executions in 1999)  Canada: 1.8 per 100,000 (1999) (0 executions in 1999)

Nations  US murder rate also 3 times higher than Europe  They have death penalty … we do not

Summary of Evidence  No studies considered valid today show evidence of deterrence  The largest, most sophisticated study which found evidence of deterrence (Ehrlich, 1975) concluded for each execution, 7-8 murders would be prevented  This study was replicated numerous times and found NO EFFECT  Study is plagued by numerous flaws so that National Academy of Sciences report did not accept his findings

But supporters say...  Consider the BEST BET HYPOTHESIS …  If we do not know if the death penalty is a deterrent, we should bet that it is  … it would be better to assume there is a deterrent (when there is not) and use death penalty -- this unnecessarily kills guilty murderers  … than to assume there is not a deterrent (when there is) and not use the death penalty -- this allows innocent people to die …

So supporters say...  Consider the ANECDOAL EVIDENCE...  Stories do exist of those who claim to have been deterred by fear of capital punishment …

Experts’ Views  Survey of Presidents of ASC, Academy of Criminal Justice Sciences, and Law and Society Association found:  84% say death penalty is NOT deterrent to homicide  0% say the death penalty significantly reduces homicide  93% say threat of death penalty is NOT greater deterrent to murder than long prison terms  87% say abolishing the death penalty in a state would have no significant effects of murder in that state  100% say politicians support death penalty to appear tough on crime  87% say debates about death penalty distract law makers from focusing on real solutions to crime problems

So what about Incapacitation?  Incapacitation is “taking away one’s ability to commit another crime so that it is impossible to commit more crimes”  While typical forms include probation, incarceration, the ultimate form is death!  Anyone want to argue that death penalty does not achieve this?

Does capital punishment achieve incapacitation?  Yes, for 2% of aggravated murderers!  Remember Supreme Court said we cannot kill them all, prosecutors do not pursue it, juries will not impose it...  So, a handful of them are killed (31 per year since 1977)  And it costs more to kill them (the way U.S does it) than to keep them in prison for life  So, is it necessary or is there an alternative?

Question  Can either incapacitation or deterrence justify the death penalty? (6AE)