Capital Punishment on Trial:
Which Side Is Correct?
by Theodore Kamis
( Originally submitted as a term paper for an English course (Instructor: S. Winifred Morgan) at Edgewood College, Madison, WI, on 12 May 1996. )
In most of the industrialized world, capital punishment is not used to punish criminals. Even South Africa, once notorious for its many executions, is giving up capital punishment. However, it is still used in the United States. The capital punishment debate in the United States has raged for almost four hundred years. Supporters of capital punishment often cite its roles as deterrent and retribution as reasons for their support of the death penalty. Opponents of capital punishment cite its arbitrariness and finality as reasons for their opposition against the death penalty. Because capital punishment can lead to an unequal application of justice, sometimes to the point of executing innocent persons, no amount of argument from its supporters should prevent it from being abolished.
Supporters of capital punishment begin by arguing that capital punishment deters murder. This view has been held for thousands of years. In his book The Penalty of Death, Thorsten Sellin notes what the famous 18th century English law commentator William Blackstone wrote in his Commentaries on the Laws of England:
As to the end or final cause of punishment, this is not by way of atonement...but as a prevention against future offenses of the same kind. This is effected three ways, either by the amendment of the offender...or by deterring others...or lastly by depriving the party injuring of the power to do future mischief. (Sellin 77)
This sentiment was expressed by Socrates (in Gorgias) and by his antagonist Demosthenes some 2,000 years before Blackstone (Sellin 3-5).
But what evidence is there to support the idea that the death penalty deters potential murderers better than any other form of punishment? Until Professor Isaac Ehrlich released his study on this subject, only anecdotal evidence existed, and that had been provided by people in the law enforcement, judicial, and corrections fields. By 1953, the Royal Commission on Capital Punishment in England noted:
...capital punishment has obviously failed as a deterrent when a murder is committed. We can number its failures. But we cannot number its successes. No one can ever know how many people have refrained from murder because of the fear of being hanged. For that we have to rely on indirect and inconclusive evidence. (Sellin 80)
Despite this, the United States Supreme Court assumes that there is sufficient evidence of a deterrence effect: "...the reasonable conclusions of Congress and 35 state legislatures that there are indeed certain circumstances in which the death penalty is the most efficacious deterrent of crime" (Sellin 81-2).
Professor Ehrlich's study of deterrence is minutely detailed in William J. Bowers' book Legal Homicide. Ehrlich's hypothesis is that the murder rate can be analyzed in economic terms (for instance, cost versus benefit). He measured various economic and criminal statistical variables for the period of 1933-1969 (307-8), and concluded that "each execution saved seven or eight innocent lives by deterring murders that would otherwise occur" (280-1). Ehrlich's study is the only one concerning deterrence cited by capital punishment supporters.
Supporters of capital punishment also argue that society must retaliate against criminals. They conclude that the best possible retribution against a murderer is capital punishment. Sellin quotes Exodus 21:23-25, "Whenever hurt is done, you shall give life for life, eye for eye, tooth for tooth,..." (Sellin 14). In a Congressional Quarterly research report, "Death Penalty Debate Centers on Retribution," Richard L. Worsnop notes that this argument is not the only basis for retribution against criminals. Justice Potter Stewart notes that "The instinct for retribution is part of the nature of man, and channeling that instinct...serves an important purpose in promoting the stability of a society governed by law" (Worsnop 12-13). Stewart also predicts that if the state does not execute murderers, lynch mobs will (Worsnop 14).
Ernest van den Haag, a professor at Fordham University and an ardent supporter of capital punishment, notes in The Death Penalty: A Debate that retribution is a necessary reason for the state to perform capital punishment. Why? In order to prevent personal revenge, which may be expressed in the form of lynch law (van den Haag 246-7). Sellin notes that there were many crimes in the Judaic law for which retribution by death was expected - crimes from talking back to one's parents, to adultery, to breaking the Sabbath, to blasphemy, to murder (Sellin 10-14). These arguments represent the case of those who support capital punishment.
The Rebuttal of Those Arguments by Those Who Oppose Capital Punishment
The opponents of capital punishment respond to these arguments by pointing out certain flaws in the supporters' case. They begin by demonstrating that capital punishment does not deter murderers better than life imprisonment. In his analysis of Ehrlich's study, Bowers notes several flaws that compromise the study's conclusions. First, Ehrlich used inaccurate and incomplete data of homicide figures. The FBI figures that he used did not have all possible data on homicides, and the data which had been collected was not as accurate as similar data available from the Census Bureau (Bowers 309-14). Second, the calculation method by which Ehrlich made his claim of lives saved was not replicated by Bowers when data from the years 1963-69 were deleted. Why was this the case? Because fewer states were executing fewer prisoners during these years (Bowers 326).
So Ehrlich's study was flawed. This is only part of the problem that the deterrence argument faces. The other problem is that there have been several other studies that found no deterrent effect, or worse still, a slight opposite effect - executions leading to more murders. Bowers noted this "brutalization" effect when he attempted to replicate Ehrlich's study (Bowers 333). Sellin compared homicide rates over a relatively long period of time for several contiguous groups of states. Each group of states was generally similar except on one point - their use of capital punishment. If capital punishment was a deterrent, the murder rate should be lower in death penalty states. Five groups of states were compared; none showed any deterrence effect (Sellin 139-56). As Amnesty International's study of capital punishment When The State Kills: The Death Penalty v Human Rights reminded readers, Justice Thurgood Marshall was correct when he said that "The death penalty is no more effective deterrent than life imprisonment..." (Amnesty 13).
As for the supporters' argument of retribution, the opponents of capital punishment could not argue this point if it always was imposed fairly. But the opponents believe they can show latent unfairness when they present their arguments on arbitrariness, and thus reserve their rebuttal of retribution for their arguments.
The Arguments of Those Who Oppose Capital Punishment
Now the opponents of capital punishment present their arguments. First, they note that capital punishment is arbitrarily administered. In The Arbitrariness of the Death Penalty, Barry Nakell and Kenneth Hardy reported on capital punishment in North Carolina. In their study, they propose that if capital punishment is not being applied arbitrarily, the only factor that determines who receives capital punishment would be the evidence (Nakell 77). They found, however, that in all stages of the murder trial, from the indictment to the sentencing, the evidence factor was insufficient by itself to determine who would receive capital punishment. At the indictment stage, a person's chances of being indicted depended upon where the grand jury met. Some judicial districts returned first degree murder indictments for evidentially weak cases (Nakell 123-30). At the opening argument stage, this geographic factor was still present. However, if the defendant was black, his chances of being charged with first degree murder were always different than if he had been white. Presuming equal evidence, the ratio of first degree murder charges filed against black defendants (as opposed to those filed against white defendants) ranged from 0.2:1 to 10:1. In no case was the ratio even (Nakell 131-9).
When the case was submitted to the jury, if the defendant was black instead of white he would, at best, face the same prospect that the jury would deliberate his case at first degree murder. At worst, the black defendant would be 56 times as likely to face a first degree murder deliberation than a white defendant (Nakell 139-44). At sentencing, the key factor was the race of the victim. If the victim was white instead of black, the defendant was six times as likely to receive a death sentence (Nakell 144-9). The prosecutor is most likely to cause arbitrariness (Nakell 152).
In a New York Times story, "Punishable By Death: Who Decides Who Will Die?" Tamar Lewin notes arbitrariness elsewhere. In Texas, of the 92 persons executed in Texas since 1976, 37 were convicted in Houston, but only 5 were convicted in Dallas (Lewin 1). Sister Helen Prejean, C.S.J. has witnessed several executions in Louisiana and has acted as spiritual adviser to several persons who were condemned to death. In Dead Man Walking, Louisiana Corrections Department chief C. Paul Phelps admits to her that capital punishment as practiced in Louisiana is not fair. Why? "[It] produces the death penalty when it is to the advantage of the prosecution" (Prejean 102). If the defendant is poor and cannot afford proper legal counsel (Lewin 2), if local politics play a role (Lewin 4), or if the victim is a woman or child (Lewin 5), prosecutors think it is to their advantage to seek capital punishment. With about 22,000 murders and 18,000 arrests per year, there are only about 300 sentences of capital punishment, and no more than 60 executions per year (Lewin 2).
If all murderers deserve to die, why aren't they all being sentenced to death? Amnesty suggests a possible motivation: "...a token number of prisoners are executed - in effect, sacrificed, to satisfy popular demand" (Amnesty 17). When Prejean appeared in an interview with Peter Jennings and George Will on ABC World News Tonight (28 December 1984), Will suggested that the retribution inherent in capital punishment "can be noble." However, he also suggested that capital punishment should not be done too much or it might have a "very bad coarsening effect on the country" (Prejean 215).
Opponents of capital punishment also argue that the finality of capital punishment does not allow for the correction of error should a person be falsely convicted. In In Spite of Innocence: Erroneous Convictions in Capital Cases, Michael Radelet, Hugo Adam Bedau, and Constance Putnam studied hundreds of cases where there is some indication of an erroneous conviction. They found evidence that at least 400 persons have been falsely convicted of murder (Radelet 271). Of these cases, 23 were executed (Radelet 272-3), and another 27 were saved at the last moment, sometimes minutes before the scheduled execution (Radelet 275-6). The case of Leonel Herrera, noted in the Progressive ("Lethal Expediency"), is further proof that innocent persons can be executed. Convicted of murdering two policemen, he found evidence that would clear him. But the Texas courts and the United States Supreme Court said that the exculpatory evidence was "irrelevant", because of a missed filing deadline. Should one doubt this evidence, anyone who claims to be rational must review the Nicarico / Cruz / Hernandez case here, and review more opinions about capital punishment here.
The Rebuttal of Those Arguments by Those Who Favor Capital Punishment
How do capital punishment supporters respond to these arguments? Phelps notes that "People these days want revenge..." (Prejean 105). van den Haag notes that "Justice requires punishing the guilty - as many of the guilty as possible...and sparing the innocent - as many of the innocent as possible, even if not all are spared" (van den Haag 224). He also responds to Radelet, "All human activities...cause innocent people to suffer wrongful death, but we don't give them up". In carrying out capital punishment, van den Haag concludes that even if innocents are executed, "...a net gain in justice is being done" (Prejean 221).
The public seems to agree with van den Haag. According to the Sourcebook of Criminal Justice Statistics, 74 percent of people surveyed in a Gallup poll in 1995 supported capital punishment even if one out of a hundred executed were innocent (Justice 184). However, in a survey conducted by the author, people were asked to qualitatively respond to various statements regarding capital punishment. The indicated support for capital punishment from this survey was weaker than could be expected from the Gallup survey data (Kamis 6-7). Also, the respondents tended to agree with the opponent's arguments of arbitrariness and finality/error (Kamis 7).
Now that the arguments from each side have been heard, they must be weighed. The supporters clearly have not proven the deterrence argument, despite the fact that it seems to make sense. Those who believe that retribution against murderers is a good argument for capital punishment will not change their opinion unless solid facts refuting them are presented. However, such facts do not exist, so this is not possible. The opponents' arguments about arbitrariness are solidly rooted in fact. Even if one presumed that the supporters had refuted this, they could not refute the argument that the finality of capital punishment does not allow errors to be corrected.
The Marquis de Lafayette concludes, "Till
the infallibility of human judgement shall have been proved to me, I shall
demand the abolition of the death penalty"
(Radelet 281). Since the supporters of capital punishment have never claimed
that they could prove this, I must agree with Lafayette.
Amnesty International. When the State Kills...The Death Penalty v. Human Rights. London: Amnesty, 1989.
Bowers, William L. Legal Homicide. Boston: Northeastern UP, 1984.
Kamis, Theodore. "Capital Punishment Survey Report." Unpublished paper. Madison, 1996. >> You may: (Link to this report here.) (Link to the raw data here.)
"Lethal Expediency." Progressive Mar. 1993: 10. InfoTrac: Expanded Academic Index. CD-ROM. Information Access. Apr. 1996.
Lewin, Tamar. "Punishable by Death: Who Decides Who Will Die? Even Within States, It Varies." New York Times 23 February 1995: A1+. SIRS Researcher. CD-ROM. Boca Raton: SIRS, 1996.
Nakell, Barry and Kenneth A. Hardy. The Arbitrariness of the Death Penalty. Philadelphia: Temple UP, 1987.
Prejean, Helen. Dead Man Walking: An Eyewitness Account of the Death Penalty in the United States. New York: Random, 1993.
Radelet, Michael L., Hugo Adam Bedau, and Constance Putnam. In Spite of Innocence: Erroneous Convictions in Capital Cases. Boston: Northeastern UP, 1992.
Sellin, Thorsten. The Penalty of Death. Beverly Hills: Sage, 1980.
United States. Department of Justice. Bureau of Criminal Justice Statistics. Sourcebook of Criminal Justice Statistics 1994. Kathleen Maguire and Ann L. Pastore, eds. Washington: GPO, 1995.
van den Haag, Ernest and John P. Conrad. The Death Penalty: A Debate. New York: Plenum, 1983.
Worsnop, Richard L.
"Death Penalty Debate Centers on Retribution." Congressional
Quarterly - Editorial Research Reports 1.26 (1990): 398-410. SIRS
Researcher. CD-ROM. Boca Raton: SIRS, 1996.
Home .... Biography .... Radio Days .... Capital Punishment
My Favorite Films .. Mail me.. .. Visit my mirror site...