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DISCORD OVER THE DEATH PENALTY

The death penalty is the most severe form of punishment and also probably the most controversial and emotional issue in the study of legal punishment of deterrence. Historically, property offenses rather than violent crimes accounted for the majority of executions (Ferguson, 2010). In the eighteenth century, England allowed the death penalty for more than 200 offenses, including poaching and smuggling. Executions were performed in public and were a popular spectacle. The standard methods of execution were hanging, beheading, disemboweling, and quartering. Although the colonies inherited capital punishment from England, by the middle of the nineteenth century, the United States imposed the death sentence primarily for murder and, to a lesser extent, rape.

In the 1972 decision Furman v. Georgia, the U.S. Supreme Court declared capital punishment unconstitutional as then practiced. The Court held that the discretionary application of the death penalty to only a small fraction of those eligible to be executed was capricious and arbitrary and hence unconstitutional. However, a number of states responded to the Court ruling by making the death penalty mandatory for certain offenses, such as multiple killings; killing in connection with a robbery, rape, kidnapping, or hostage situation; murder for hire; killing a police officer or prison guard; and treason. Some of these revised statutes were held to be constitutional by the Supreme Court in 1976 when it voted 7-2 in Gregg v. Georgia to reinstate the death penalty.

Executions resumed during the following years and reached a peak of 98 executions in 1999. They have declined since then, with only 39 people executed in 2013. The number of inmates on death row has also declined: At year’s end 2013, 2,979 U.S. inmates were on death row, compared to a peak of 3,601 inmates in 2000 (Snell, 2014).

There is a mounting national debate over whether lethal injection is a cruel and unusual punishment because of recent medical information showing a risk of great pain if poorly trained personnel mishandle the anesthetic that is supposed to render inmates unconscious (Henderson, 2006). At the same time, medical groups warn physicians on aiding executions, and a mandate from the American Board of Anesthesiology that “we are healers, not executioners” could result in the loss of certification of those who participate in lethal injection (Stein, 2010). In another controversy, research shows that other things being equal, killers of white people are more likely to receive death sentences than killers of African Americans (Bohm, 2015).

Arguments for the Death Penalty The arguments for the death penalty are mostly anecdotal but, at times, can become visceral (Peppers and Anderson, 2009). Proponents of the death penalty contend that it:

  • is a deterrent to others and that it protects society;
  • constitutes retribution for society and the victim's family and serves to protect police officers and prison guards; and
  • removes the possibility that the offenders will repeat the act.

Regarding deterrence, little empirical evidence supports the use of the death penalty as a deterrent. The early work of Isaac Ehrlich did find a deterrent effect. Using econometric modeling techniques to construct a “supply-and-demand” theory of murder, Ehrlich (1975) argued that the death penalty prevents more murders than do prison sentences. He speculated that because of the 3,411 executions carried out from 1933 to 1967, enough murderers were discouraged so that some 27,000 victims’ lives were saved.

As might be expected, his conclusions drew immediate criticism, with an assortment of concerns raised. Among others critiques, Ehrlich did not compare the effectiveness of capital punishment with that of life imprisonment. When data from 1965 to 1969 are omitted, the relationship between murder rates and executions was not statistically significant (Loh, 1984). While considering the increases in homicides in the 1960s, he failed to account for the possible influences of rising racial tensions, the Vietnam War, and increased ownership of handguns. Moreover, for deterrence to be effective, murderers need to take into consideration the probable costs of their action. Emotions and passions at play can make such a cost-benefit analysis unlikely. Recalling Chambliss’s work, most murderers are low-commitment individuals, often under the influence of drugs or alcohol, who are unlikely to assess rationally the consequences of their action. For them, the death penalty remains a highly questionable deterrent.

 
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