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Criminal Justice , 2009 David B. Muhlhausen, “The Death Penalty Deters Crime and Saves Lives,” Heritage Foundation, August 28, 2007. www.heritage.org. Reproduced by permission of the author. “Capital punishment produces a strong deterrent effect that saves lives.” In the following viewpoint, David B. Muhlhausen argues that capital punishment should not be abandoned because it deters crimes, saves lives, and the majority of American citizens support its use. Additionally, he maintains that evidence does not support claims that racial discrimination results in a disproportionate number of African Americans incarcerated on death row.
David B. Muhlhausen is a senior policy analyst in the area of criminal justice for the Heritage Foundation, a conservative public policy research organization.
As you read, consider the following questions: 1. According to the 2006 study conducted by the RAND Corporation, what affects whether the death penalty is sought as punishment for a crime? 2. What are the three findings of Joanna M. Shepherd’s analysis of data from 1977 to 1999 on the death penalty? 3.
Based on research conducted by H. Naci Mocan and R. Kaj Gittings, how many murders result from each commutation of a death row sentence? While opponents of capital punishment have been very vocal in their opposition, Gallup opinion polls consistently demonstrate that the American public overwhelmingly supports capital punishment. In Gallup’s most recent poll, 67 percent of Americans favor the death penalty for those convicted of murder, while only 28 percent are opposed. From 2000 to the most recent poll in 2006, support for capital punishment consistently runs a 2:1 ratio in favor. Despite strong public support for capital punishment, federal, state, and local officials must continually ensure that its implementation rigorously upholds constitutional protections, such as due process and equal protection of the law.
However, the criminal process should not be abused to prevent the lawful imposition of the death penalty in appropriate capital cases.
Crime Characteristics More Important Than Race
As of December 2005, there were 37 prisoners under a sentence of death in the federal system. Of these prisoners, 43.2 percent were white, while 54.1 percent were African-American. The fact that African-Americans are a majority of federal prisoners on death row and a minority in the overall United States population may lead some to conclude that the federal system discriminates against African-Americans. However, there is little rigorous evidence that such disparities exist in the federal system. Under a competitive grant process, the National Institute of Justice awarded the RAND Corporation a grant to determine whether racial disparities exist in the federal death penalty system.
The resulting 2006 RAND study set out to determine what factors, including the defendant’s race, victim’s race, and crime characteristics, affect the decision to seek a death penalty case. Three independent teams of researchers were tasked with developing their own methodologies to analyze the data. Only after each team independently drew their own conclusions did they share their findings with each other. When first looking at the raw data without controlling for case characteristics, RAND found that large race effects with the decision to seek the death penalty are more likely to occur when the defendants are white and when the victims are white. However, these disparities disappeared in each of the three studies when the heinousness of the crimes was taken into account.
The RAND study concludes that the findings support the view that decisions to seek the death penalty are driven by characteristics of crimes rather than by race. RAND’s findings are very compelling because three independent research teams, using the same data but different methodologies, reached the same conclusions. While there is little evidence that the federal capital punishment system treats minorities unfairly, some may argue that the death penalty systems in certain states may be discriminatory. One such state is Maryland. In May 2001, then-Governor Parris Glendening instituted a moratorium on the use of capital punishment in Maryland in light of concerns that it may be unevenly applied to minorities, especially African-Americans. In 2000, Governor Glendening commissioned University of Maryland Professor of Criminology Ray Paternoster to study the possibility of racial discrimination in the application of the death penalty in Maryland.
The results of Professor Paternoster’s study found that black defendants who murder white victims are substantially more likely to be charged with a capital crime and sentenced to death. In 2003, Governor Robert L. Ehrlich wisely lifted the moratorium. His decision was justified. In 2005, a careful review of the study by Professor of Statistics and Sociology Richard Berk of the University of California, Los Angeles, and his coauthors found that the results of Professor Paternoster’s study do not stand up to statistical scrutiny. According to Professor Berk’s re-analysis, “For both capital charges and death sentences, race either played no role or a small role that is very difficult to specify. In short, it is very difficult to find convincing evidence for racial effects in the Maryland data and if there are any, they may not be additive.” Further, race may have a small influence because “cases with a black defendant and white victim or ‘other’ racial combination are less likely to have a death sentence.”
The Death Penalty Deters Crime
Federal, state, and local officials need to recognize that the death penalty saves lives. How capital punishment affects murder rates can be explained through general deterrence theory, which supposes that increasing the risk of apprehension and punishment for crime deters individuals from committing crime. Nobel laureate Gary S. Becker’s seminal 1968 study of the economics of crime assumed that individuals respond to the costs and benefits of committing crime.
According to deterrence theory, criminals are no different from law-abiding people. Criminals [economist Paul H. Rubin writes] “rationally maximize their own self-interest (utility) subject to constraints (prices, incomes) that they face in the marketplace and elsewhere.” Individuals make their decisions based on the net costs and benefits of each alternative. Thus, deterrence theory provides a basis for analyzing how capital punishment should influence murder rates. Over the years, several studies have demonstrated a link between executions and decreases in murder rates. In fact, studies done in recent years, using sophisticated panel data methods, consistently demonstrate a strong link between executions and reduced murder incidents.
The rigorous examination of the deterrent effect of capital punishment began with research in the 1970s by Isaac Ehrlich, currently a University of Buffalo Distinguished Professor of Economics. Professor Ehrlich’s research found that the death penalty had a strong deterrent effect. While his research was debated by other scholars, additional research by Professor Ehrlich reconfirmed his original findings. In addition, research by Professor Stephen K. Layson of the University of North Carolina at Greensboro strongly reconfirmed Ehrlich’s previous findings.
The Death Penalty Saves Lives
Numerous studies published over the past few years, using panel data sets [statisticians make distinctions between panel sets vs. what they call “one-dimensional,” or “cross-sectional” data sets] and sophisticated social science techniques, are demonstrating that the death penalty saves lives. Panel studies observe multiple units over several periods. The addition of multiple data collection points gives the results of capital punishment panel studies substantially more credibility than the results of studies that have only single before-and-after intervention measures. Further, the longitudinal nature of the panel data allows researchers to analyze the impact of the death penalty over time that cross-sectional data sets cannot address. Using a panel data set of over 3,000 counties from 1977 to 1996, Professors Hashem Dezhbakhsh, Paul R. Rubin, and Joanna M. Shepherd of Emory University found that each execution, on average, results in 18 fewer murders.
Using state-level panel data from 1960 to 2000, Professors Dezhbakhsh and Shepherd were able to compare the relationship between executions and murder incidents before, during, and after the U.S. Supreme Court’s death penalty moratorium. They found that executions had a highly significant negative relationship with murder incidents. Additionally, the implementation of state moratoria is associated with the increased incidence of murders. Separately, Professor Shepherd’s analysis of monthly data from 1977 to 1999 found three important findings. First, each execution, on average, is associated with three fewer murders. The deterred murders included both crimes of passion and murders by intimates. Second, executions deter the murder of whites and African-Americans. Each execution prevents the murder of one white person, 1.5 African-Americans, and 0.5 persons of other races. Third, shorter waits on death row are associated with increased deterrence. For each additional 2.75-year reduction in the death row wait until execution, one murder is deterred.
Commuting Death Penalty Sentences Is Deadly
Professors H. Naci Mocan and R. Kaj Gittings of the University of Colorado at Denver have published two studies confirming the deterrent effect of capital punishment. The first study used state-level data from 1977 to 1997 to analyze the influence of executions, commutations, and removals from death row on the incidence of murder. For each additional execution, on average, about five murders were deterred. Alternatively, for each additional commutation, on average, five additional murders resulted. A removal from death row by either state courts or the U.S. Supreme Court is associated with an increase of one additional murder. Addressing criticism of their work, Professors Mocan and Gittings conducted additional analyses and found that their original findings provided robust support for the deterrent effect of capital punishment. Two studies by Paul R. Zimmerman, a Federal Communications Commission economist, also support the deterrent effect of capital punishment. Using state-level data from 1978 to 1997, Zimmerman found that each additional execution, on average, results in 14 fewer murders.
Zimmerman’s second study, using similar data, found that executions conducted by electrocution are the most effective at providing deterrence. Using a small state-level data set from 1995 to 1999, Professor Robert B. Ekelund of Auburn University and his colleagues analyzed the effect that executions have on single incidents of murder and multiple incidents of murder. They found that executions reduced single murder rates, while there was no effect on multiple murder rates. In summary, the recent studies using panel data techniques have confirmed what we learned decades ago: Capital punishment does, in fact, save lives. Each additional execution appears to deter between three and 18 murders. While opponents of capital punishment allege that it is unfairly used against African-Americans, each additional execution deters the murder of 1.5 African-Americans. Further moratoria, commuted sentences, and death row removals appear to increase the incidence of murder.
The strength of these findings has caused some legal scholars, originally opposed to the death penalty on moral grounds, to rethink their case. In particular, Professor Cass R. Sunstein of the University of Chicago has commented: If the recent evidence of deterrence is shown to be correct, then opponents of capital punishment will face an uphill struggle on moral grounds. If each execution is saving lives, the harms of capital punishment would have to be very great to justify its abolition, far greater than most critics have heretofore alleged. Americans support capital punishment for two good reasons. First, there is little evidence to suggest that minorities are treated unfairly. Second, capital punishment produces a strong deterrent effect that saves lives.
Books Howard Ball Bush, the Detainees, and the Constitution: The Battle over Presidential Power in the War on Terror. Lawrence: University of Kansas Press, 2007. Hugo Adam Bedau and Paul G. Cassell Debating the Death Penalty: Should America Have Capital Punishment? The Experts on Both Sides Make Their Case. New York: Oxford University Press, 2005. Michael Braswell, Larry Miller, and Joycelyn Pollock Case Studies in Criminal Justice Ethics. Long Grove, IL: Waveland, 2006. Mark Costanzo Just Revenge: Costs and Consequences of the Death Penalty. New York: St. Martin’s Press, 1997. Angela Y. Davis Are Prisons Obsolete? New York: Open Media, 2003. Kevin Davis Defending the Damned: Inside Chicago’s Cook County Public Defender’s Office. New York: Atria, 2007.
Rolando V. del Carmen and Chad R. Trulson Juvenile Justice: The System, Process and Law. Belmont, CA: Wadsworth, 2005. Jack L. Goldsmith The Terror Presidency: Law and Judgment Inside the Bush Administration. New York: Norton, 2007. Tara Herivel and Paul Wright Prison Nation: The Warehousing of America’s Poor. New York: Routledge, 2002. Steve Holbert and Lisa Rose The Color of Guilt & Innocence: Racial Profiling and Police Practices in America . San Ramon, CA: Page Marque Press, 2004. James A. Inciardi Criminal Justice. New York: McGraw-Hill, 2006. Eleanor Hannon Judah Criminal Justice: Retribution vs. Restoration. New York: Routledge, 2004. David Klinger Into the Kill Zone: A Cop’s Eye View of Deadly Force. San Francisco: Jossey-Bass, 2006. Christian Parenti Lockdown America: Police and Prisons in the Age of Crisis. New York: Verso, 2000. Joycelyn M. Pollock Ethical Dilemmas and Decisions in Criminal Justice. Belmont, CA: Wadsworth, 2006. Jeffrey Reiman The Rich Get Richer and the Poor Get Prison. Boston: Allyn & Bacon, 2007.
Anthony Thompson Releasing Prisoners, Redeeming Communities: Reentry, Race, and Politics. New York: NYU Press, 2008. Jeremy Travis But They All Come Back: Facing the Challenges of Prisoner Reentry. Washington, DC: Urban Institute Press, 2005. Samuel Walker and Charles M. Katz The Police in America. New York: McGraw-Hill, 2007. Samuel Walker, Cassia Spohn, and Miriam DeLone The Color of Justice: Race, Ethnicity, and Crime in America. Belmont, CA: Wadsworth, 2006. Brian L. Withrow Racial Profiling: From Rhetoric to Reason. Upper Saddle River, NJ: Prentice Hall, 2005. Periodicals Roy D. Adler and Michael Summers “Capital Punishment Works,” Wall Street Journal, November 2, 2007. Louis Freedberg “Reforming Three Strikes,” Nation, November 1, 2004.
Annette Fuentes “Give the Kids a Break,” USA Today, February 13, 2008. Cathleen Kaveny “Justice or Vengeance,” Commonweal, February 15, 2008. Nancy Merritt, Terry Fain, and Susan Turner “Oregon’s Get Tough Sentencing Reform: A Lesson in Justice System Adaptation,” Criminology & Public Policy, February 2006. Michael M. O’Hear “The Second Chance Act and the Future of Reentry Reform,” Federal Sentencing Reporter, December 2007. Mary Price “Mandatory Minimums in the Federal System: Turning a Blind Eye to Justice,” Human Rights: Journal of the Section of Individual Rights & Responsibilities, Winter 2004. Julie Rawe “Congress’s Bad Drug Habit,” Time, November 19, 2007. Bruce Shapiro “A Lethal Decision,” Nation, May 12, 2008. Jonathan Turley “The Punishment Fits the Times,” USA Today, January 16, 2008.
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