Policy Debate: Is the death penalty an efficient crime deterrent?

Capital punishment is a barbaric remnant of uncivilized society. It is immoral in principle, and unfair and discriminatory in practice. It assures the execution of some innocent people. As a remedy for crime, it has no purpose and no effect. Capital punishment ought to be abolished now.
~American Civil Liberties Union

I believe that the weight of the evidence--aggregate statistical analyses, evaluations of experiments and quasi-experiments, and studies of individual behavior--supports the view that the rate of crime is influenced by its costs. This influence is greater--or easier to observe- for some crimes and persons than for others.
~James Q. Wilson, "Thinking About Crime: The Debate over Deterrence," The Atlantic Monthly, September 1983

The death penalty has been used as a penalty for severe crimes since the beginning of recorded history. In 1972, the U.S. Supreme Court ruled in the case of Furman v. Georgia that the death penalty laws of 39 states were unconstitutional. This ruling stated that the death penalty provided "cruel and unusual punishment" under existing state statutes. In Gregg v. Georgia (1976), the Supreme Court held that state death penalty laws could be constitutional if these laws provided clear and objective standards under which the death penalty may be applied. Thirty-eight states now have such death penalty laws in effect.

The economic argument in favor of the death penalty is rather simple. Economists assume that individuals weigh the expected costs and benefits when deciding to undertake any activity. Thus, rational individuals considering criminal activities would weigh the expected benefits against the expected cost of the criminal endeavor. The expected cost of any given crime is affected by the probability of being detected, the probability of being convicted given detection, and the expected penalty that results from a conviction. Since the death penalty provides a higher cost than alternative punishments, it is expected to generate a larger deterrent effect, ceteris paribus.

Opponents of the death penalty argue that:

• those contemplating criminal activities do not rationally weigh the benefits and costs of their actions,
• the costs associated with obtaining a death penalty conviction are larger than the costs associated with providing lifetime imprisonment,
• in a world of imperfect information, innocent individuals may be convicted and executed before exonerating information is discovered, and
• the death penalty has disproportionately been applied in cases in which the defendant is nonwhite or the victim is white.

Those who are convicted of capital crimes frequently have little education and may not possess sufficient information about the probabilities of detection and conviction to rationally calculate the costs and benefits associated with capital offenses. In this case, the deterrent effect may be small or nonexistent. Opponents of the death penalty often argue in support of lifetime imprisonment as an alternative to the death penalty since imprisonment, on average, is less costly and may be reversed if exonerating evidence later becomes available. The use of life imprisonment instead of the death penalty would free resources that could be devoted to more effective methods of crime deterrence. The differential treatment of minorities and low-income individuals under the death penalty raises a number of equity issues.

Recent studies concerning racial bias and wrongful convictions have lead the governors of Maryland and Illinois to introduce a moratorium on the application of the death penalty in their states. The Illinois moratorium began in 2000 while the Maryland moratorium was begun in May 2002. Despite a January 7, 2003 University of Maryland study finding a significant racial bias in the administration of the death penalty, newly elected Governor Robert L. Ehrlich Jr. ended the Maryland moratorium in January 2003

In 2002, The U.S. Supreme Court prohibited the imposition of the death penalty on severely mentally retarded individuals. It was held that a changing social consensus had rendered the imposition of the death penalty in tsuch cases to constitute cruel and inhuman punishment. Using similar reasoning, the U.S. Supreme Court, in Roper V. Simmons (2005) prohibited the imposition of the death penalty on individuals who were younger than 18 years old at the time of the commission of the crime.

The debate over the death penalty includes a discussion of a variety of ethical, philosophical, and moral issues as well as economic issues. The online materials described below provide a small sampling of these arguments.

• National Criminal Justice Reference Service
  http://www.ncjrs.org/
  This site, provided by the National Criminal Justice Reference Service, contains an extensive collection of links to criminal justice statistics and data, law enforcement information, abstracts of criminal justice related studies, and other criminal justice resources.

• Bureau of Justice Statistics
  http://www.ojp.usdoj.gov/bjs/
  The U.S. Bureau of Justice Statistics home page contains an extensive collection of criminal justice studies, statistics, and downloadable data sets. Annual reports on the number of and demographic characteristics of those convicted and executed are also provided at this site. At the time that this page was last updated (11/18/06), the most recent available report is for 2004 capital punishment cases. Annual data on U.S. executions from 1930 to 2005 is also provided on this site.

• Cornell Law School Death Penalty Project
  http://www.lawschool.cornell.edu/lawlibrary/death/default.htm
  The Cornell Law School Death Penalty Project provides extensive legal information about the death penalty. This site provides information concerning Supreme Court and Appellate Court cases that involve capital punishment issues, the text of state capital punishment statutes, and links to studies concerning the application of the death penalty.

• American Bar Association Statement on the Death Penalty
  http://www.abanet.org/irr/rec107.html
  This document contains the official position of the American Bar Association concerning the death penalty. This document states that the American Bar Association believes that no executions should be carried out in a jurisdiction unless ABA procedures are adopted that are designed to ensure that death penalty cases are "administered fairly and impartially" and that procedures are used that minimize the risk of convicting an innocent person. The Association argues that these procedures should be designed to eliminate discrimination based on the race of either the defendant or the victim and should prohibit capital punishment for those who are mentally retarded or under the age of 18 at the time of the offense.

• The Oyez Project, Furman v. Georgia
  http://www.oyez.org/oyez/resource/case/131/resources
  The Oyez Project at Northwestern University provides an audio version of the verbal arguments before the U.S. Supreme Court in the Furman v. Georgia case as well as a link to the written decision.

• The Oyez Project, Gregg v. Georgia
  http://www.oyez.org/oyez/resource/case/469/resources
  The Oyez Project at Northwestern University provides an audio version of the verbal arguments before the U.S. Supreme Court in the Gregg v. Georgia case. A link to the written decision is also provided.

• The Oyez Project, Atkins v. Virginia
  http://www.oyez.org/oyez/resource/case/1483/resources
  The Oyez Project at Northwestern University provides an audio version of the verbal arguments before the U.S. Supreme Court in the Atkins v. Virginia case. A link to the written decision is also provided.

• Roper v. Simmons
  http://www.law.cornell.edu/supct/html/03-633.ZO.html
  Cornell University provides this text of the March 1, 2005 Roper v. Simmons decision that effectively banned the imposition of the death penalty for individuals younger than 18 years old at the time the crime was committed.

• Encyclopedia of Law and Economics, Bibliographic Database - Alternative Sanctions, Cruel Sanctions
  http://allserv.rug.ac.be/~gdegeest/8200book.pdf
  The Encyclopedia of Law and Economics provides an extensive bibliography of print journal articles dealing with the death penalty (and other related issues). (The Adobe Acrobat viewer plugin is required to view this document. You may download this viewer by clicking here.)

• Michigan State University Libraries, "Criminal Justice Resources: Death Penalty"
  http://www.lib.msu.edu/harris23/crimjust/death.htm
  This site contains a collection of links to death penalty resources that are available on the internet. Most of the sites listed provide arguments opposed to the death penalty.

• About.com, "The Death Penalty"
  http://crime.about.com/od/death/
  About.com provides this annotated collection of links to death penalty resources.

• Death Penalty Information Center
  http://www.deathpenaltyinfo.org/
  The Death Penalty Information Center is a nonprofit organization that is opposed to the death penalty. This web site contains an extensive collection of information on:
  • the disparate treatment of minority groups,
  • the frequent discovery of evidence that exonerates those convicted of capital offenses,
  • the high cost associated with death penalty prosecutions, and
  • other arguments that suggest that the costs associated with the use of the death penalty exceed the social benefits.
  The Death Penalty Information Center also provides an online death penalty quiz.

• American Civil Liberties Union, "Death Penalty"
  http://www.aclu.org/capital/index.html
  This web site contains the American Civil Liberties Union's (ACLU) arguments against the death penalty. Position papers, news about death penalty issues, and links to other resources are available at this site. The ACLU argues that the death penalty is inequitably imposed and constitutes a form of cruel and unusual punishment.

• Amnesty International, "The Death Penalty"
  http://web.amnesty.org/pages/deathpenalty-index-eng
  Amnesty International opposes the death penalty. This site contains a collection of information supporting this position. Amnesty International notes that many nations have either abolished the death penalty or substantially curtailed its use while the U.S. has expanded the use of the death penalty during the last 20 years.

• Amnesty International's Death Penalty Quiz
  http://www.patweb.com/dpquiz/index.htm
  This site contains two quizzes concerned with death penalty facts and statistics. One quiz deals with U.S. national death penalty cases, the other is devoted to the application of the death penalty in Georgia.

• Robert Dunham, "Death Penalty and Race: Partners in Injustice"
  http://www.counterpunch.org/dunham1.html
  This December 10, 2001 article provides an argument for the existence of racial bias in the application of death penalty sentences. Dunham focuses his discussion on Philadelphia, a city that has an exceptionally high proportion of black prisoners on death row. He cites statistics that indicate that racial profiling was used by prosecutors in jury selection.

• Clark County (Indiana) Prosecuting Attorney, "The Death Penalty"
  http://www.clarkprosecutor.org/html/links/dplinks.htm
  This web page contains over 1,000 links to online death penalty web resources. Links are provided to sites that represent both the pro and con sides of this issue.

• United Nations Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, "Extrajudicial, summary, or arbitrary executions: Mission to the United States of America"
  http://www.extrajudicialexecutions.org/reports/E_CN_4_1998_68_Add_3.pdf
  In this 1998 report, the United Nations Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions discusses the application of the death penalty in the United States. It is argued that victims of the death penalty included mentally ill individuals and individuals who were younger than 18 years old at the time of the commission of their crime.

• Project on Extrajuridicial Executions - United States of America: Visits & Communications
  http://www.extrajudicialexecutions.org/communications/united_states.html
  The Project on Extrajuridicial Executions webite is provided by the Center for Human Rights and Global Justice at at New York University School of Law. This page contains the text of correspondence between the U.S. government and the United Nations Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions. It also contains links to relevant reports to the text of reports by the United Nations Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions.

• National Center for Policy Analysis, "Does Punishment Deter?"
  http://www.ncpa.org/bg/bg148/bg148a.html
  In this August 17, 1998 NCPA Policy Backgrounder, the National Center for Policy Analysis reviews earlier studies of the relationship between punishment and crime deterrence. The NCPA notes that empirical evidence suggests that criminal behavior is more responsive to changes in the probability of detection and conviction than to changes in the intensity of punishment. They cite a National Academy of Sciences panel that found that a 50% increase in the probability of incarceration has a deterrent effect that is approximately twice as large as that resulting from a 50% increase in the average jail term. The NCSA notes, though, that both the probability and the severity of punishment affect the magnitude of the deterrent effect.

• Hugo Adam Bedau, "The Case Against the Death Penalty"
  http://users.rcn.com/mwood/deathpen.html
  In this online essay, Hugo Adam Bedau argues that the death penalty:
  • is inconsistently applied,
  • has little deterrent effect because it affects such a small proportion of murderers,
  • has no effect on unpremeditated crime,
  • is no more effective than life imprisonment as a deterrent but is more costly, and
  • encourages violence in society.

• David D. Friedman, "Rational Criminal and Profit Maximizing Police: Gary Becker's Contribution to the Economic Analysis of Law and Law Enforcement"
  http://www.daviddfriedman.com/Academic/Becker_Chapter/Becker_Chapter.html
  David D. Friedman examines the microeconomic theory of crime deterrence. He notes that society has to balance benefits against costs in determining the optimal level of crime deterrence. The implications of this principle for criminal justice policy are discussed in this essay.

• Oriskany Central School, "The Economics of Capital Punishment"
  http://www.cybervillage.com/ocs/penalty.htm
  On this web site, the Oriskany Central School in Oriskany, N.Y., provides a discussion of economics of capital punishment in the U.S. They conclude that the death penalty is ineffective and not economical.

• Phil Porter, "The Economics of Capital Punishment"
  http://www.mindspring.com/~phporter/econ.html
  In this online essay, Phil Porter argues that the death penalty is an inefficient method of deterring crime. He also notes that the death penalty is fallible (a substantial number of innocent people have been convicted), and has historically been applied in a discriminatory manner.

• The Innocence Project
  http://www.innocenceproject.org/
  This is the website of an organization that performs post-conviction DNA analysis to investigate claims of innocence of individuals convicted of crimes. It is noted that, as of November 2006 that 187 individuals have been freed based on postconviction DNA evidence. In a substantial proportion of these convictions, individuals had provided false confessions. This group suggests that all questioning leading to a confession should be videotaped to avoid police actions that may help generate false confessions.

• ThrowAwayTheKey.org
  http://www.throwawaythekey.org/
  This is the website of an organization that argues in favor of the death penalty and extended prison sentences. This group argues that greater emphasis should be placed on protecting society from crime.

• Prodeathpenalty.com
  http://www.prodeathpenalty.com/
  This web site contains arguments, data, articles, death penalty information, and links to other death penalty resources on the internet.

• Prodeathpenalty.com, "Death Penalty and Sentencing Information"
  http://www.prodeathpenalty.com/DP.html
  This online essay provides arguments supporting the death penalty. The author argues that few innocent individuals are convicted under the death penalty. The death penalty both deters crime and incapacitates criminals who have already committed capital offenses. This article also argues that the high cost of death penalty convictions is due to the extensive effort by death penalty opponents in mounting defenses in death penalty cases.

• American Society of Criminology, "Death Penalty Information and Resources"
  http://sun.soci.niu.edu/~critcrim/dp/dp.html
  This page contains information explaining the American Society of Criminology's opposition to the death penalty. Links to online death penalty resources are also provided on this site.

• James Liebman, Jeffrey Fagan, and Valerie West, "A Broken System: Error Rates in Capital Cases, 1973-1995"
  http://www2.law.columbia.edu/instructionalservices/liebman/
  This study, released on June 12, 2000, examines 5760 capital cases and 4578 appeals during the period years 1973 through 1995. They found that over 2/3 of the cases were "seriously flawed." Most cases were overturned on appeal as a result of either incompetent legal assistance or prosecutorial suppression of evidence during the initial trial. (The Adobe Acrobat viewer plugin is required to view this document. You may download this viewer by clicking here.)

• Raymond Paternoster, Robert Brame, et al., "An Empirical Analysis of Maryland's Death Sentencing System with respect to the Influence of Race and Legal Jurisdiction"
  http://www.urhome.umd.edu/newsdesk/pdf/finalrep.pdf
  This January 7, 2003 study finds that the race of both the victim and the defendant play a signficiant role in the decision to apply the death penalty in homicide cases in Maryland between 1978 and 1999. Unlike many earlier studies, this study hold constant the effect of many other mitigating or aggravating factors associated with the crime. This study was commissioned by Governor Parris Glendening in 2000 to investigate the possibility of discriminatory treatment. (The Adobe Acrobat viewer plugin is required to view this document. You may download this viewer by clicking here.)

  Governor Robert L. Ehrlich Jr., however, ended the moratorium in January 2003. On March 19, 2003, a legislative attempt to continue Maryland's death penalty moratorium failed.

• Richard Posner, "The Economics of Capital Punishment"
  http://www.becker-posner-blog.com/archives/2005/12/the_economics_o.html
  Richard Posner provides arguments in support of capital punishment in this December 18, 2005 blog posting. He argues that the deterrent effect of the death penalty is sufficiently large to outweigh the cost of errors in falsely convicting innocent individuals. Posner argues that it would be efficient to speed up the process of executing individuals convicted of capital offenses.

• Gary Becker, "More on the Economics of Capital Punishment"
  http://www.becker-posner-blog.com/archives/2005/12/the_economics_o.html
  In this December 18, 2005 blog posting, Gary Becker responds to Richard Posner's posting in support of capital punishment. Becker shares Posner's support for the death penalty, but bases his support solely on the deterrent effect estimated by Ehrlich. He argues that failing to use the death penalty will result in the loss of more lives than would be lost due to executions.

• Steven D. Levitt, "'Creative' use of data by death penalty proponents"
  http://www.freakonomics.com/blog/2006/03/04/...death-penalty-proponents/
  Steven D. Levitt discusses the evidence concerning the deterrent effect of capital punishment in this March 4, 2006 blog posting. He notes that recent studies, relying on larger datasets and more sophisticated econometric techniques, cast doubt on the deterrent effect found in earlier studies by Ehrlich and others.

• Lawrence Katz, Steven D. Levitt, and Ellen Shustorovich, "Prison Conditions, Capital Punishment, and Deterrence"
  http://pricetheory.uchicago.edu/levitt/Papers/KatzLevittShustrovich2003.pdf
  Lawrence Katz, Steven D. Levitt, and Ellen Shustorovich examine the deterrent effect of capital punishment in this 2003 American Law and Economics Review article. They find little evidence of a deterrent effect from capital punishment (in 17 of 20 estimated equations, there was no significant evidence of a deterrent effect from capital punishment). The Adobe Acrobat viewer plugin is required to view this document. You may download this viewer by clicking here.

• John Donohue and Justin Wolfers, "Uses and Abuses of Empirical Evidence in the Death Penalty Debate"
  http://islandia.law.yale.edu/donohue/pubsdata.htm
  In this December 2005 Stanford Law Review article, John Donohue and Justin Wolfers examine the statistical evidence concerning the deterrent effect of the death penalty. They argue that there is no convincing evidence of a deterrent effect from capital punishment. Past studies that have have found a deterrent effect do not hold up when model specification or the sample period is altered. (The Adobe Acrobat viewer plugin is required to view this document. You may download this viewer by clicking here.)