Capital Punishment, its morality, constitutionality and more importantly its functionality is subject to centuries old academic debates. Literature on arguments for and against capital punishment has vast resources and defenses from moral and religious arguments to statistical and economic arguments. From human right concerns to moral, ethical, religious oppositions to the capital punishment, from discrimination to risk for executing innocent people, one side believes in the abolition of death penalty. On the other side believers of the well functioning of the death penalty mainly meet on such arguments of retribution, economic costs of imprisonment. Both side’s arguments and counter arguments, on the other hand, are based on the deterrence function of the capital punishment for certain types of homicide. The question then turns to whether the severity of punishment diminishes certain types of homicides. This paper mainly will analyze the arguments against and for capital punishment within the perspective of deterrence theory. As of the punishment is justifiable if it can realize its aims. That is sure that beyond the other reasons, deterrence effect of the capital punishment is its most important consequential aim. Accordingly first part of the paper will be vested to the ascertainments of the Van den Hagg. Hagg’s arguments for the deterrence effect of dealth penalty, the Best Bet Argument, describe the real benefits of the society by saving the lives of innocent future victims. Then the paper will process to evaluate the arguments for and against to the capital punishment within the perspective of the deterrence theory just after given definition of the terms as capital punishment and deterrence theory.. Last remark will be Third part of the paper will reconsider and evaluate findings of these three arguments.
VAN DEN HAGG AND CAPITAL PUNISHMENT
When we consider that there is a fact that capital punishment is deterrent, and then we could find the only legitimization for the capital punishment. Who deserves to dies for some kinds of homicide, only can be answered if there is deterrent effect of capital punishment. It is somehow a cost-benefit analysis beside the mathematical or qualitative analysis of the deterrence effects of the capital punishment. While this debate is continuing in various grounds from economy to religion, most abstract point of view for the deterrence effect of the capital punishment is its severity. Certain crimes will be punished with the lives of its offenders. By taking this into consideration it is assumed that criminals will deter for committing certain actions to save their own lives. On the other hand in the literature there is no agreed evidence for this assumption. Capital punishment will deter murder. Actually all types of punishments have deterrence. Even prosecution and short – term imprisonment may deter the drug users or other such kind of criminals. At the end, capital punishment is a consequence and people most often did not think about the consequences when they commit certain types of crimes. Although there might be a link between the homicide rate and the execution of capital punishment, there are cases where the homicide rate is high with the capital punishment and less without capital punishment.
Proponents of death penalty mainly believe in deterrence theory as a justifying ground. The deterrence theory is used to rationalize that homicides will diminish when the punishment is severe. Within this perspective, cost of the crime for the potential committers will provide him/her a deterred factor. Moreover severe punishments like capital punishment removes offenders’ chance for repetition of his/her act. Preserving future innocent lives with these two factors is the main argument for the proponents of deterrence theory. At this point Van den Hagg support that “If one does not believe capital punishment can be just, discrimination becomes a subordinate argument, since one would object to capital punishment even if it were distributed equally to all the guilty. If one does believe that capital punishment for murderers is deserved, discrimination against guilty black murderers and in favor of equally guilty white murderers is wrong, not because blacks receive the deserved punishment, but because whites escape it.” Van den Hagg’s point is death penalty has noting to do with the discrimination. These are two different things. Thus objecting to the death penalty just because for the risk of discrimination is not the concern of whether death penalty is leagl, moral or deterrent. The remedy is correcting the discrimination not the death penalty for the deservers. The point made by van den Hagg is very clear however not fully convincing but rather abstract. Deciding who deserves to die for what action. Is every guilt will face with the same conviction? Although these questions cane be answered by the legal statutes, legislation and execution of those statutes can not be hundred percent free from errors. Reinman’s conclusion at this point deserves a quote; “Killing is a morally acceptable penalty only if it is essential, and only if it provides substantial benefits that cannot be gained by any other means. Capital punishment is not just a moral abstraction. It is a reality that must be evaluated on the basis of benefits and costs.” Pojmain in his defense for death penalty supports deterrence theory by giving reference to the Haag’s Best Bet argument. For Hagg “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.” On the other hand Hagg accepts that there are risks and uncertainties with the death penalty and call for’ betting’ for the best. For Hagg even in the uncertainties about the deterrence effect of the death penalty the saved lives of future victims precede over the loss life of the murderer because the life of the future victims are more valuable then the life of the victim. He, in a clear way explains this as;
If we do not know whether the death penalty will deter others, we are confronted with two uncertainties. If we impose the death penalty, and achieve no deterrent effect thereby, the life of a convicted murderer has been expended in vain (from a deterrent viewpoint). There is a net loss. If we impose the death sentence, and thereby deter some future murderers, we spare the lives of some future victims (the prospective murderers gain, too: they are spared punishment because they were deterred). In this case, the death penalty has led to a net gain, unless the life of a convicted murderer is valued more highly than that of the unknown victim, or victims (and the non-imprisonment of the deterred non-murderer).
Hagg concluded as; “To be sure, we must risk something certain-the death (or life) of the convicted man, for something uncertain the death (or life) of the victims of murderers who may be deterred. This is in the nature of uncertainty.”
CAPITAL PUNISHMENT PROS AND CONS
The term Capital, originally comes from the Latin term caput, the head. Historically the capital punishment refers to the death by decapitation but today refers to the punishment by death executed by the state and those crimes require the death penalty legally known as capital crimes.
The deterrence theory is in the hearth of the capital punishment. The validity of the theory firstly tested by Sellin, who has concluded as capital punishment is no less deterrent than long term imprisonment. Second reference point for the economical and mathematical study, on the other hand, is the famous “regression analysis” of Ehrlich. His study was one of the major turning points in the scientific evaluation of deterrence effect of the capital punishment. Ehrlich’s model challenged the Sellin’s statistical study but was no free than critiques due to its validity. Ehrlich, in the 1970s conducted a research with controlled data including unemployment, age distribution, and per capita income that are accepted as the factors for homicide. His study was covering the homicide rates between 1930 and 1970. This cross sectional analysis from various American states brought Ehrlich into a conclusion that each execution deterred between seven and eight homicides.
However Ehrlich model was criticized due to its complexity and validity. Manski here indicates that;
“[b]ecause the data likely to be available for such analysis have limitations and because criminal behavior can be so complex, the emergence of a definitive behavioral study lying to rest all controversy about the behavioral effects of deterrence policies should not be expected.”
One other leading defense for the death penalty is the retribution. Since the retribution has its roots in religion, the balance in the justice is achieved to punish the committer in the severity of his/her punishment. The defenders of the death penalty often cited the word “eye for an eye” for restoring the balance. However there are many concerns regarding to the use of retribution as a source of revenge. There is no doubt that there should be more standardized approach to the wrongdoers else then seeing that they had the same pain. Because it is temporary and as discussed somewhere in this document, open to the risk for taking lives of the innocent people. As indicated by Michigan State University notes on death penalty,
“The emotional impulse for revenge is not a sufficient justification for invoking a system of
capital punishment, with all its accompanying problems and risks. Our laws and criminal justice system should lead us to higher principles that demonstrate a complete respect for life, even the life of a murderer. Encouraging our basest motives of revenge, which ends in another killing, extends the chain of violence. Allowing executions sanctions killing as a form of ‘pay-back.”
On the other hand Michigan State University notes also indicate that “many victims’ families denounce the use of the death penalty.”
The main risk for the execution of death penalty is the risk for errors and mistakes. That is the death penalty itself is an irrevocable process. If one considers that no legal system is free from mistakes and errors, the absolute risk for the killing innocents can be seen. At this points persuasively Michigan State University notes provides that;
“Since 1973, at least 88 people have been released from death row after evidence of their innocence emerged. During the same period of time, over 650 people have been executed. Thus, for every seven people executed, we have found one person on death row who never should have been convicted. These statistics represent an intolerable risk of executing the innocent. If an automobile manufacturer operated with similar failure rates, it would be run out of business.”
One other ascertainment is also indicates the same fact;
“Our capital punishment system is unreliable. A recent study by Columbia University Law
School found that two thirds of all capital trials contained serious errors. When the cases were retried, over 80% of the defendants were not sentenced to death and 7% were completely acquitted.”
The man governed justice system as indicated above can not be out of mistakes. The attitudes of the judges, policeman even outside from the justice system, the witnesses’ behaviors are the determinant factor for the establishment of the justice. Within all these variable factors, the risk for sentencing innocent people is seen quite high. One remark at this point made as;
“Recently, journalism students in Illinois were assigned to investigate the case of a man who was scheduled to be executed, after the system of appeals had rejected his legal claims. The students discovered that one witness had lied at the original trial, and they were able to find the true killer, who confessed to the crime on videotape. The innocent man who was released was very fortunate, but he was spared because of the informal efforts of concerned citizens, not because of the justice system.”
It is sure that there are many safeguards in the criminal justice such as appeals, and one might consider that all these arguments against to the death penalty is pessimistic. However as we examined in the previous part, in the thoughts of the Haag, the risk is not might be the gambling with the lives of people. The long term imprisonment if gives no less deterrence than the capital punishment, the rationality should vote or bet on the rational, less risky position. Prisons, at the end can be emptied.
“There is no proof that any innocent person has actually been executed since increased safeguards and appeals were added to our death penalty system in the 1970s. Even if such executions have occurred, they are very rare. Imprisoning innocent people is also wrong, but we cannot empty the prisons because of that minimal risk.”
One last thought in regard to the capital punishment is its arbitrariness. It is most often happens in the United States and even in the international arena. There is a fact that, there is no common agreement internationally about which crime is capital crime. A crime can be capital crime in Iran but not in London. Moreover a crime can be capital crime in Texas but not in another US state. Thus a discretionary power of the prosecutors in the societies where the crime receives that penalty but comparable crime does not receive death penalty in other state creates inequalities. This arbitrariness has been captured as;
“It is arbitrary when someone in one county or state receives the death penalty, but someone who commits a comparable crime in another county or state is given a life sentence. Prosecutors have enormous discretion about when to seek the death penalty and when to settle for a plea bargain. There is no doubt with this bargaining power vested in their hands, the prosecutors might be vulnerable to the outside influences such as race, ethnicity, economy and so on. “
One last remark is held by Jesse L. Jackson, when he claims that;
“The death penalty is essentially an arbitrary punishment. There are no objective rules or guidelines for when a prosecutor should seek the death penalty, when a jury should recommend it, and when a judge should give it. This lack of objective, measurable standards ensures that the application of the death penalty will be discriminatory against racial, gender, and ethnic groups.”
The capital punishment and its deterrent effect have been evaluated throughout the paper. It has been seen that there is no solid record that the existence of the death penalty de jure or de facto has a negative effect in the diminishment of the homicide in a given society. There is common indicator for the abolishment of the death penalty in a given society boomed certain types of homicide. However either there is no such ground that indicating the capital punishment has no deterrent effect. Since all types of punishment consequently aimed to have deterrence. The papers at this point go through the analysis of whether more severe punishment results with more deterrent behaviors in a given society. There absolutely a crystal clear dividing line between two. More severity of the state sanctioned punishment will lead authoritarian state in the expense of controlling crime. The severity, on the other hand, is very vulnerable to the corruptions, political and cultural inequalities, racist discrimination, and execution of weakest parties. Here the unequal justice and equal injustice of discourses of Haag remains inconclusive. Where he pointed out that if there is a discrimination in the legal system, this nothing to do with the functionality of the death penalty. However this risk theory becomes invalid if there is an argument, like Sellin’s which indicates capital punishment is not more deterrent than the long imprisonment.
- Dane Archer, Rosemary Gartner, Marc Beittel, Homicide and the Death Penalty: A Cross-National Test of a Deterrence Hypothesis The Journal of Criminal Law and Criminology (1973-), Vol. 74, No. 3 (Autumn, 1983), pp. 991-1013
- Walia, Ivneet Kaur, Reference of Deterrent Theory in Capital Punishment (December 18, 2009). Available at SSRN: http://ssrn.com/abstract=1525415
- Michigan State University Comm Lab and Death Penalty Information Center, Arguments for and Against the Death Penalty, available at http://deathpenaltyinfo.msu.edu/
- Ted Goertzel, Econometric Modeling as Junk Science, The Skeptical Inquirer, Volume 26, No 1, January/February 2002, pp. 19-23 available at http://crab.rutgers.edu/~goertzel/mythsofmurder.htm
- Pojman, Louis P. and Jeffery Reiman. The Death Penalty: For and Against. Lanham, MD: Rowman and Littlefield, 1998.
- Ernest Van Den Haag, On Deterrence and the Death Penalty, Ethics, Vol. 78. No. 4 (July 1968) pp.280-288
- Ernest van den Haag, from “The Death Penalty Once More,” U.C. Davis Law Review Summer 1985, available at http://www.mhhe.com/socscience/english/allwrite3/seyler/ssite/seyler/se04/capital2.mhtml
 Dane Archer, Rosemary Gartner, Marc Beittel, Homicide and the Death Penalty: A Cross-National Test of a Deterrence Hypothesis The Journal of Criminal Law and Criminology (1973-), Vol. 74, No. 3 (Autumn, 1983), p. 999
 The idea of deterrence has two components: (1) specific punishment dispensed to the wrong doer to prevent them from recommitting the crime and (2) the presumed affect that fear of punishment will prevent others from committing similar crimes. ”Walia, Ivneet Kaur, Reference of Deterrent Theory in Capital Punishment (December 18, 2009). Available at SSRN: http://ssrn.com/abstract=1525415 “ p. 5
 Ernest van den Haag, from “The Death Penalty Once More,” U.C. Davis Law Review, Summer 1985, available at http://www.mhhe.com/socscience/english/allwrite3/seyler/ssite/seyler/se04/capital2.mhtml
 Pojman, Louis P. and Jeffery Reiman. The Death Penalty: For and Against. Lanham, MD: Rowman and Littlefield, 1998. p.39
 Ernest Van Den Haag, On Deterrence and the Death Penalty, Ethics, Vol. 78. No. 4 (July 1968) p.286
 Ibid. at.286
 Supra Note 2. at.4
 Ted Goertzel, Econometric Modeling as Junk Science, The Skeptical Inquirer, Volume 26, No 1, January/February 2002, pp. 19-23 available at http://crab.rutgers.edu/~goertzel/mythsofmurder.htm
 Michigan State University Comm Lab and Death Penalty Information Center, Arguments for and Against the Death Penalty, available at http://deathpenaltyinfo.msu.edu/