The Ultimate Punishment:
Rethinking the Death Penalty

Written By Richard T. Eckert 10/16/06
Abstract
Throughout history there have been two strong opposing sides over the capital punishment debate.  According to Ernest van den Haag (1985), one of the foremost advocates of capital punishment, the Constitution authorizes the death penalty in the Fifth Amendment when it states that “no person shall be deprived of life, liberty, or property, without due process of law”.  Through his argument he believed that the Constitution authorized deprivation of life provided that due process of law is made available (Bank, 2004). 

Through intense studies and research each side has attempted to validate their views and give detailed reasons on why the death penalty should or should not be imposed.  Those who oppose the death penalty believe that capital punishment is not a deterrent of future criminal behavior.  Opponents of capital punishment also respond to society’s sentiments by voicing their outrage in respect to a system that has consistently put innocent people to death.  Still, others attempt to show that the death penalty has severe racial implications and that ethnic minorities are at a greater risk of receiving the death penalty over their white counterparts. 

Taking these valid points into consideration, proponents, on the other hand, have continuously shown and proven that the deterrent factor is much greater than that of their opponents.  Proponents argue (add) that the threat of capital punishment does cause many would-be criminals to reconsider committing violent crimes. 

Any passionate issue, especially one that is so controversial, will have two parties with opposing views.  After reviewing much of the evidence, it would appear that those individuals, who oppose the death penalty, have not been able to prove their case.  This is particularly true in their attempts to emphatically propose that many “innocent” people are either executed or innocently sentenced to death.  The argument related to the issue of race, has also been proven to play no part in determining who receives the death penalty.  Empirical data will show that the color of one’s skin plays no part in the sentencing of capital punishment.  When analyzing both sides it is clear that each has their own points.  Although opposed by many, the death penalty should, be used in today’s criminal justice system.    
  
Deterring Future Criminal Behavior
            According to Bedau (1982), no issue raised, over the controversy of the death penalty, has been more hotly contested than those that focus on its efficacy as a deterrent.  General deterrence presumes that members of the general public will be deterred by observing the punishment of others and will conclude that the costs of crime outweigh the benefits (Clear, Cole, & Reisig, 2006).  In order for general deterrence to work, individuals must be continuously reminded that violation of the law will result in swift prosecution along with punishment that fits the specific crime.  It should be noted that the punishment must be strict enough to instill a sense of fear into those who are contemplating committing future crimes. 

      Does the threat of the death penalty actually discourage others from killing and thus make it safer?  If so, are the results significantly higher than other forms of punishment?  According to McCuen (1985), the vast preponderance of evidence suggests that the death penalty is no more effective than imprisonment at deterring others from committing crimes.  Some have pointed to the idea that potential killers envision executions as evidence that lethal vengeance is justified and instead of identifying with the offender, who was caught and executed, they identify with the executioner.  Murders ultimately learn that it’s acceptable to eliminate someone who “wrongs” them and that violence is justified against the deserving (McCuen, 1985.)    Some believe that there is a problem distinguishing between incapacitation and deterrence.  (Berns, 1991)   It can be understood that the death penalty prevents murders only because it prevents known murderers from committing additional murders; this is not because it “deters” future crimes from occurring.  Howard Zehr (1984), director of the Mennonite Central Committee U.S. Office of Criminal Justice, believes that rather than preventing violence, capital punishment may have a “brutalizing effect” that increases the level of violence in our society.  It may ultimately raise not lower murder rates.  Zehr concluded in a published New York study that suggested that an execution will result in two or three extra homicides in the following months, within the state alone, and more within the entire country. 

      Studies have also shown that many murderers commit the crime of murder only once in their lifetime.  Many of these murders occur under extreme pressure and abnormal circumstances, which are unlikely to be repeated.  Other studies have found that those who have been convicted of murder are among the most unlikely to commit violent crimes again, either inside or outside prison.  With this in mind, can we allow for alternative ways to punish offenders other than requiring the death penalty?  Abolitionists continuously question whether the death penalty prevents murders more than imprisonment and whether any possible advantages outweigh the substantial costs.

      In a speech given before the Senate Committee on April 27, 1981, Norman Darwick, director of the International Association of Chiefs of Police, testified, “that the more systematically we eliminate murderers by executions, the greater will be the reinforcement against killing along with the greater number of innocent lives saved.”  Darwick also believes that many potential murderers are deterred simply by the fact of knowing that capital punishment currently exists.  As such, many are quick to contemplate whether they should take the risk and possibly face the harsh realization of being put to death for their heinous crimes.    

      Isaac Ehrlich, a University of Chicago econometrician, conducted one of the first notable studies that credited capital punishment with deterring criminal behavior.  In a published version of his study, Ehrlich concluded “on the average the tradeoff between execution of an offender and the lives of potential victims, it might have saved, was of the magnitude of 1 for 8 for the period 1933-67 in the United States.”  Despite a mountain of criticism, Ehrlich’s study was presented to the Supreme Court in support of capital punishment.  Instead of comparing murder rates and the legal status of the death penalty from state to state or over time, within single states, Ehrlich’s study employed multiple regression analysis.  This technique is frequently used by econometricians to investigate the relationships between one of a number of possible “causes” or independent variables and a particular “effect” or dependent variables.  Even with harsh criticism, his work was cited in Gregg v. Georgia, the central U.S. Supreme Court decision restoring capital punishment.  It is also interesting to point out that Ehrlich, even with his study, publicly stated that he opposed the use of capital punishment.  

      The most conclusive evidence, which has been reported by both convicted capital murderers and by their own attorneys, is that criminals fear the death penalty more than life without parole.  As reported by Sehba and Nathan (1984), 99.9% of all convicted capital murderers and their attorneys argue for life, not death, in the punishment phase of their trial.  They further report that when the death penalty becomes real, murderers fear it the most.  As further proposed by Sehba and Nathan (1984), although society will never be able to deter all murderers; the effect of deterrence will rise as long as the probability of executions increases.  Another proponent, G. Tullock (1974) found, that after surveying the economic and sociological models of deterrence, multiple regression studies show empirically that increasing the frequency or severity of punishment does reduce the likelihood of a given crime being committed. 

      Even if it is argued that the studies regarding deterrence are inconclusive, it is only because the death penalty is rarely used and takes years before an execution is actually carried out.  What has been proven is that punishment, which is swift and sure, is the best deterrent.  Haag (1986) wrote, “That even though statistical demonstrations are not conclusive, and perhaps cannot be, capital punishment is likely to deter more than other punishments because people fear death more than anything else”.  Haag also saw capital punishment as a deterrent to those murderers who were executed.  In his writings he wrote, “Those who are executed never have the chance of escaping or being released just so that they can commit their heinous crimes again”.  Haag saw capital punishment as both a deterrent and a form of permanent incapacitation, both having shown to prevent future crimes. 

      In his logical approach to capital punishment, Cassell concludes “that the death penalty is the most effective deterrent for some kinds of murders- those that require reflection and forethought by persons of reasonable intelligence and unimpaired mental faculties”.   What the Supreme Court has ruled is that the death penalty can only apply to “carefully contemplated” first-degree murders- that is, murders committed with premeditation and malice.  Cassell wrote that “salient issue is not whether the death penalty deters every murder; only whether it deters some murders, logic suggests that at least some potential murderers will be deterred” (2004).

      Although each side presents very strong points, it’s apparent that the death penalty will not deter everyone from committing crimes.  What society can certainly agree upon is that the idea of death frightens almost all.  With the eminent threat of death, it can be logically concluded that capital punishment will cause many to reconsider committing heinous crimes.    

Executing the Innocent 
       Great effort has been made in pretrial, trial, appeals, writ and clemency procedures to minimize the chance of an innocent person being convicted, sentenced to death or executed (Sharp, 1997).  In the twenty-five years from 1973 to 1998, there was an average of 2.96 exonerations per year.  In the five years since 1998, thru 2003, that average has risen to 7.60 exonerations (Dieter, 1997).  In a 1993 report, at the request of Rep. Don Edwards, then the Chair of the House Judiciary Subcommittee on Civil and Constitutional Rights, the Death Penalty Information Center prepared a report on the problem of innocent people being placed on death row.  In their report they highlighted the two main reasons, which they felt, were the cause for the increased number of innocent individuals being placed on death row.  The first was the overall expansion of the death penalty.  As the number of people on death row increases, so does the likelihood for further mistakes.  This increase was partly contributed to both the state and federal governments broadening the use of the death penalty to newer crimes.    

      The second reason, which was implied, was the political backing of judges, legislators and prosecutors, who promote the death penalty in their campaigns (Dieter, 1996).  All of these positions can be easily influenced in their decisions to ignore evidence of innocence unless it is absolutely irrefutable (McCann, 1996). 

      In a paper written by noted author and researcher, Professor Samuel Gross (1996), he examined the many reasons why more mistakes are made in capital cases than in any other criminal matter.  Some of the problems he presented included: the great pressure on police and prosecutors to “solve” the most notorious murders, the lack of eyewitness testimony, heightened publicity, death qualified juries, limited resources of defense attorneys and the heinousness of death penalty cases.  These errors, according to Gross, have been the cause of so many innocent people being sentenced to death. 

      “Perhaps the most successful rhetorical attack on the death penalty has been the claim that innocent persons have been convicted of, and even executed for, capital offenses” (Cassell, 204).  Proponents of capital punishment have continuously shown that the data presented, by their opponents, have either been miscalculated or misrepresented.  One such claim, which was most notably advanced in a 1987 article by Professor Hugo Bedau and Michael Radelet, stated that approximately twenty-three innocent persons had been executed in this country during this century.  Cassell (1988) reported, “That most of the cases came from the early part of the century, long before the adoption of the extensive contemporary system of safeguards in the death penalty administration.  They also discovered that neither author could cite a single alleged erroneous execution during the past thirty years.”  Other flaws in their study showed at least twelve of those cases having no evidence of innocence and a strong substantial evidence of guilt.  What was subsequently shown was that both Bedau and Radelet, “consistently presented incomplete and misleading accounts of the evidence” (Markman, Stephen & Cassell, 1988).  Out of the remaining eleven cases, which represent 0.14% of the 7,800 executions that have taken place since 1900, all have shown no factual evidence of innocence. 

      In another review of Bedau and Radelet study, Michigan Court of Appeals Judge Stephen Markman (1994) stated “not only is this study remarkable for demonstrating that mistakes involving the death penalty are common, but rather for demonstrating how uncommon they are”.  Markman also pointed out that the most thorough and extensive analysis ever on the subject, failed to prove that that a single such mistake has occurred in the United States during the twentieth century. 

      When we consider the innocent, we must also consider the risk to the innocent if we do not execute.  According to Sharpe (2004), there has been overwhelming proof that living murderers harm and murder again, in prison, after improper release and, as we so recently experienced, after escape.  In the end, what will be concluded is that through society’s elimination of the death penalty, this will cause a direct rise in the number of murders and assaults on innocent people.  Justice Department studies also suggest “that it is likely that some two million innocent people have been harmed, 100,000 murdered, since 1973, by criminals while “supervised” by the U.S. criminal justice systems” (as cited in Sharpe, 2004). 

      Proponents also point to the highly extensive due process protection afforded to those involved in death penalty cases.  With the awarding of appeals, commutation and clemency we find that our system anticipates errors and provides remedies.  According to Sharpe (2004), even though the idea of an innocent person being found guilty of a crime, is unspeakable, in all of the cases studied, none have ever been executed. 
 
Racial Implications
      There are those who believe that capital punishment is unfair to people of certain races, classes and mental disabilities.  Proponents say that these issues have no merit when it comes to delivering capital punishment.  According to Stevenson (1995), the death penalty reflects the middle class’ desire to strike out at the poor and racial minorities.  Statements such as these have outraged proponents, who claim that these statements only further the writer’s own prejudices.  Throughout the years there have been many studies and statistical data published to show that capital punishment is not distributed based on the color of one’s skin or one’s position on the economic ladder, but on the aggravated nature of the crime. 

      One such claim, which has been continuously backed by death penalty opponents, is the idea that the race of the victim determines who is placed on death row.  According to the NAACP Legal Defense Fund (1996), 82% of the murder victims in death penalty cases are white, 13% are black, a 6:1 ratio.  Opponents, such as Kica Matos, NAACP Legal Defense Fund, Steven Hawkins, Exec Director, National Coalition to Abolish the Death Penalty (NCADP) and Sister Helen Prejean, longtime Chairperson of the NCADP and author of Dead Man Walking, present facts as evidence that the “system” values white over blacks.  According to Sharpe (1997), if this was true, then we must wonder why whites represent 56% of those executed and blacks 38% (NAACP LDF, 1996), while it should also be considered that blacks have committed 47% of all murders and whites 38%.  According to these figures, whites are executed at a rate of nearly 50% above their involvement in murder, while blacks are executed at rates 20% below their involvement in murder. 

      Other evidence, which has been presented, has shown no evidence of any system wide discrimination, in the imposition of the death penalty, beyond the 1950’s (Kleck, 1981).  From 1929-1966, white murderers were more likely to be executed than black murderers (10.4 vs. 9.7/1000); this trend continues today.

      As society considers the data, from both past and present, there is no such evidence that proves that race plays any part in determining who is sentenced to death row.  Empirically, what has been proven is that successful capital prosecutions are based on the totality and nature of the crime and not on the race of either the victim or of the defendant.      

      These are just a few of the issues raised by both sides of the capital punishment debate.  Other issues focus on religion, economic factors and the sentencing of juveniles and the mentally handicapped to death.  Capital punishment is an issue that is either black or white.  It will forever be the center of many heated debates and controversy.  The issue of capital punishment touches on everyone in their own particular way.  For those individuals, who decided to commit crimes, they must be ready take full responsibility for their actions.  For those individuals who decide to commit murder must be able to handle the responsibility that goes along with it.  When such a heinous crime is committed, society should have the right, through legal justification, to deliver its deserved punishment.       
 

References 
Bedau, H. (1982). The Death Penalty in America (3rd ed.). New York: Oxford University
      Press.
 
Bedau, H. & Radelet, M. (1987). Miscarriage of Justice in Potentially Capital Cases. 40
      Stan. L. Rev. 21.
 
Banks, C. (2004). Criminal Justice Ethics: Theory and Practice. New York: Sage Publications, Inc.
 
Berns, W. (1979). For Capital Punishment: Crime and the Morality of the Death Penalty.
      Maryland: University Press of American, Inc.
 
Cassell, P. G. (2004). In Defense of the Death Penalty. In H. Bedau & P. Cassell (Eds.),
      Debating the Death Penalty (pp. 189-190). New York: Oxford University Press.
 
Clear, T. R., Cole, G. F., & Reisig, M. D. (2006). American Corrections (7th ed.).
      California: Thomas Learning, Inc.
 
Darwick, N. (1981). The Death Penalty Prevents Crime. In G. McCuen, Reviving
      the Death Penalty (pp. 65-66). Wisconsin: Gary E. McCuen Publication, Inc.
 
Dieter, R. C. (1997). Innocence and the Death Penalty: The Increasing Danger of
      Executing the Innocent. Retrieved October 13, 2006, from
      http://www.deathpenaltyinfo.org/article.php?scid=45&did=292#7
 
Ehrlich, I. (1975). The Deterrent Effect of Capital Punishment: A Question of Life and
      Death. American Economic Review-65 (pp. 397-417). 
 
Gregg v. Georgia, 428 U.S. 153 (1976)
 
Gross, S. (1996). The Risks of Death: Why Erroneous Convictions are Common in Capital
      Cases. Rev. 469.
 
Haag, E. (1986). The Ultimate Punishment: A Defense. Harvard Law Review
      Associations.
 
Kleck, G. (1981). Racial Discrimination in Criminal Sentencing: A Critical Evaluation
      of the Evidence with Additional Evidence on the Death Penalty. American
      Sociological Review.
 
Markman, S. J., & Cassell, P. G. (1988). Protecting the Innocent: A Response to the
      Bedau-Radelet Study. 41 Stan. L. Rev. 121.
 
McCann, E. M. (1996). Opposing Capital Punishment: A Prosecutor’s Perspective, Rev.
      649 (p. 667).
 
McCuen, G. (1985). Reviving the Death Penalty. Wisconsin: Gary E. McCuen
      Publications, Inc.
 
NAACP, Legal Defense Fund (1996). Capital Punishment and Race. Retrieved October 12, 2006, from http://www.prodeathpenalty.com/DP.html#C.Race
 
Prejean, H. (1996). Opposing the Death Penalty. Retrieved October 12, 2006, from
      http://www.prodeathpenalty.com/DP.html#C.Race
 
Sehba, L., & Nathan, G. (1984). Further Explorations in the Scale of Penalties. British
      Journal of Criminology, 24: 221-249.
 
Sharp, D. (1997). Death Penalty and Sentencing Information. Retrieved September            16, 2006, from http://www.prodeathpenalty.com/DP.html
 
Tullock, G. 1974. Does Punishment Deter Crime? The Public Interests 36: 103-111.
 
Van den Haag, E. (1985). The Death Penalty Once More.  U.C. Davis Law Review 18(4), pp. 957-972.
 
Zehr, H. (1984). Death as a Penalty. Mennonite Central Committee of the U.S. and Canada.
Back to ​Deterrence