The Advocate, Vol. 19, No. 6 (November 1997)
 
Crime Control and the Death Penalty

The execution of Harold McQueen on July 1, 1997 has revived the debate in Kentucky about the use of capital punishment. Much of that debate centers around issues of morality, ethics, and the appropriateness of vengeance as a matter of state policy. What is often curiously absent from the death penalty debate is any discussion of the enormous volume of social science research on the subject. The death penalty is more than a matter of opinion. There are established, well-documented facts which are beyond refutation, but which are usually ignored in both public discourse and in official decisionmaking related to capital punishment.

The simple fact is that no issue has been more thoroughly researched and evaluated, in all of criminal justice, than capital punishment. Those of us in criminology and criminal justice are not certain of very many things regarding crime and its control in our society, but we can be absolutely certain, to a level of scientific proof that far exceeds the standard of proof required in the criminal courts, that the death penalty, as presently constructed and administered is very bad policy. This is not a matter of differing opinions or interpretations, it is a matter of clear, irrefutable, undebatable scientific truth established over half a century and involving dozens of studies. It is rare in criminology to find virtually every researcher and every study in agreement, but in this case they are. In studies using entirely different methodologies, at different times, in different places, constructing research questions in different ways, the facts are immutable and unchanging. The scientifically proven facts of the death penalty are clear.

The Death Penalty and General Deterrence

The key argument in support of capital punishment has traditionally been that no offender wants to die, therefore the threat of execution will deter homicide in society at large. On its face this argument seems to be simple common sense. Of course, like many folk myths and much common sense, it is less sensible than it is common. The facts are very simple. No credible study of capital punishment in the United States has ever found a deterrent effect.

In studies of contiguous states, at least one with the death penalty and at least one without, research has shown that there is no deterrent impact from capital punishment. Because these states are selected and matched on the basis of geographical location, and similar social demographic characteristics, we would expect there to be few confounding factors in measuring the impact of capital punishment. If there is a deterrent, death penalty states should have a markedly lower homicide rate. They do not. Homicide rates in states without the death penalty are no higher, and, in many cases, are lower, than in neighboring states with the death penalty (Sellin, 1980).

Similarly in studies of states where the death penalty was adopted or reinstated after having been abolished, research has once again failed to show any deterrent effect. The adoption or reinstatement of the death penalty does nothing to reduce the homicide rate (Sellin, 1980; Zeisel, 1977).

Comparative data also fails to demonstrate any deterrent value to the death penalty. The United States is the only Western democracy that retains the death penalty. The United States also has, far and away, the highest homicide rate in the industrialized world. Far from a deterrent effect, the death penalty would appear to have an aggravating effect on homicide rates (Kappeler, Blumberg, and Potter, 1996: 310).

The scientific conclusion is clear. The death penalty does not deter homicide. No study has ever found a deterrent effect, no matter how skewed the research question was in favor the death penalty. It's alleged deterrent value is refuted by everything we know about violent crime. The death penalty, if it is to deter, must be a conscious part of a cost-benefit equation in the perpetrator's mind. There are very few murders that involve that level of rationality or consciousness of the outcomes. Most murders are (1) committed under the influence of drugs or alcohol; (2) committed by people with severe personality disorders; (3) committed during periods of extreme rage and anger; or (4) committed as a result of intense fear. None of these states of mind lend itself to the calm reflection required for a deterrent effect.

The Death Penalty and Specific Deterrence

Proponents of the death penalty also argue that capital punishment provides a specific deterrent which controls individuals who have already been identified as dangerous criminal actors. According to this argument the presence of death penalty ought to reduce a wide variety of criminal acts. Does it?

Certainly, if the death penalty deters homicide then it should prevent incarcerated people from killing again and reduce the number of homicides among prisoners. The fact of the matter is that over 90% of all prisoner homicides, killings of other prisoners or correctional officers, occur in states with capital punishment (Sellin, 1980).

A major death penalty study by Bailey (1991) also refutes the idea that capital punishment has any impact on other felonies. Despite the fact that Bailey measured the impact of capital punishment in three distinct and different ways he could find no evidence that the death penalty had any effect on index felony crime rates. Bailey concluded that "this pattern holds for the traditional targeted offense of murder, the personal crimes of negligent manslaughter, rape, assault and robbery, as well as the property crimes of burglary, grand larceny, and vehicle theft. In other words, there is no evidence ... that residents of death penalty jurisdictions are afforded an added measure of protection against serious crimes by executions" (Bailey, 1991: 35).

Finally, it has been argued that capital punishment specifically protects law enforcement officers by deterring assaults and killings of police. There have been five major studies addressing the question of whether capital punishment protects police officers. In no case did the death penalty provide any deterrent to killing law enforcement officers, nor did it reduce the rate of assaults on police (Bailey and Peterson, 1987; Bailey. 1982; Sellin, 1980, Cardarelli, 1968; Hunter and Wood, 1994).

Once again the scientific evidence is clear, the death penalty does not deter other crimes in any way. It has no deterrent impact on other felonies, it has no deterrent impact on crimes against law enforcement officers, it has no deterrent impact on drug crimes, and it has no deterrent impact on violent crimes. In fact, the death penalty is more likely to endanger the lives of police who investigate crime and pursue fugitives, and endanger the lives of witnesses who may provide evidence necessary for conviction. The reason is obvious, preventing capture and conviction becomes far more pressing a matter in death penalty states.

The Death Penalty and Incapacitation

The frequently advanced argument the that death penalty protects society by incapacitating violent criminals and thereby preventing further offenses is also weak. Obviously, an executed murderer is unlikely to recidivate, but so is a murderer in prison for life without parole. The facts, however, indicate that even if not executed and even if not incarcerated for life, it is unlikely that a person convicted of homicide will kill again, or even commit an additional serious offense.

A massive study which tracked the post-release behavior of 6,835 male prisoners serving sentences for homicide offenses who were paroled from state institutions, found that only 4.5% of them were subsequently convicted of another crime and only 0.31% committed another homicide (Sellin, 1980). This means that for every 323 executions we might prevent one additional murder. Other studies find essentially the same results. For example a study of prisoners whose sentences were commuted as a result of the Furman decision (Marquart and Sorenson, 1988), found that 75 percent of these inmates committed no serious infractions of prison rules, and none of these inmates were involved in a prison homicide. Some of the Furman commuted inmates were paroled back into the community. Only 14 percent of them committed a new crime, and only one committed an additional homicide.

Vito, Koester and Wilson (1991) also analyzed the behavior of inmates removed from death row as a result of the Furman decision. There study found that of those inmates eventually paroled only 4.5% committed another violent crime and only 1.6 percent committed another homicide. The authors conclude "that societal protection from convicted capital murderers is not greatly enhanced by the death penalty" (Vito et al., 1991: 96).

Even in states with capital punishment the overwhelming majority of people convicted of homicide receive a prison sentence, and many of them will eventually be released on parole. A review of the data on these released murderers clearly reveal that they have the lowest recidivism rates of any felons. In addition, paroled murderers in states without the death penalty had a much lower rate of recidivism than parolees released in states with the death penalty (Bedau, 1982).

The death penalty does not protect society from further crimes of violence by murderers in any significant way. Once again the incapacitation argument is grounded in fundamental ignorance concerning the characteristics of violent crimes in general and murder in particular. But while there is no scientific evidence of societal protection from the death penalty, there is considerable scientific evidence that the death penalty stimulates violence, crime and murder.

The Brutalization Effect of the Death Penalty

So, neither incapacitation nor deterrence theories are supported by the social science research on capital punishment. In most public policy debates the burden of proof is on those advocating a measure. If that were the case here death penalty adherents would fail miserably. But the fact is that lack of deterrence and a failure to protect society are the least of the problems with capital punishment. In fact, the death penalty produces serious crime problems and social problems of its own. Probably most important of these is the fact that death penalty not only doesnít deter murder, it encourages people to kill.

Studies of capital punishment have consistently shown that homicide actually increases in the time period surrounding an execution. Social scientists refer to this as the "brutalization effect." Execution stimulates homicides in three ways: (1) executions desensitize the public to the immorality of killing, increasing the probability that some people will then decide to kill; (2) the state legitimizes the notion that vengeance for past misdeeds is acceptable; and (3) executions also have an imitation effect, where people actually follow the example set by the state, after all, people feel if the government can kill its enemies, so can they (Bowers and Pierce, 1980; King, 1978, Forst. 1983).

The earliest and most important study demonstrating a brutalization effect was conducted in Philadelphia in 1935, by Robert Dann. Dann looked at five executions of convicted murderers in different years. Dannís research found an average increase of 4.4 homicides for each execution. Dannís research clearly demonstrated that rather than having a deterrent impact, executions markedly increased the incidence of homicide (Dann, 1935).

Another study by William Graves in California also found a brutalization effect. Graves looked at homicide records in Los Angeles, San Francisco, and Alameda counties in order to determine whether there were fewer murders in the days following an execution than in the days leading up to the event. As a comparative measure, he examined the same days of the week for those periods in which an execution did not occur. Graves reported that compared with weeks when no death sentences were carried out, the number of murders actually increased in the days prior to an execution and on the day of the execution itself. Graves (1957: 137) concluded that persons contemplating homicide are "stimulated by the stateís taking of life to act sooner." In addition, a reanalysis of Gravesí data (Bowers et al., 1984: 284) concluded that "homicides were higher in the weeks after than in the weeks before executions." Gravesí research, therefore, clearly demonstrates a brutalization effect prior to an execution and an even more pronounced one following an execution.

Another study (Bowers and Pierce, 1980) found that executions in California and Pennsylvania encourage crime and homicide. Each execution studied was followed by a two- to threefold increase in the number of homicides the next month. Bowers and Pierce argue there is a small group of people in society who have "reached a state of Ďreadiness to kill,í" and have an intended victim in mind. The execution itself, or coverage prior to the execution conveys to these people the message that vengeance is justified. Brian Forst found the same effect in his study of the deterrent impact of capital punishment between 1960 and 1970. He found no evidence that executions prevented crime. On the other hand, Forst did find evidence that executions "provoked" homicides (Forst, 1983).

One of the most compelling and recent studies demonstrating the brutalization effect looked at a September 1990 execution in Oklahoma, the first execution in that state in twenty-five years. The researchers monitored the homicide rate for three years following that execution and found "an abrupt and lasting increase in the level of stranger homicides," which on the average rose by one per month (Cochran et al. 1994).

While not a direct test of the brutalization effect it is, nonetheless, instructive to note that in post-Furman period marking the reintroduction of capital punishment in 1983, about one-third of all executions in the United States have occurred in Georgia and Louisiana, and in both states the murder rate has increased markedly (UCR, 1983; UCR 1989). In fact, the highest murder rates in the country are in the four states that have carried 70% of the post-Furman executions, all of which have now achieved murder rates much higher than the national average of 8.4 (Georgia, 11.7; Florida, 11.4; Louisiana, 11.6; and Texas, 12.1) (Compare these to states with no executions since Furman: Vermont 2.0; Maine, 3.1; Massachusetts, 3.5; Rhode Island, 4.1; Wisconsin, 3.0; Iowa, 1.7; Minnesota, 2.9; North Dakota, 1.8.) In fact, 36.9% of the states with capital punishment have murder rates in excess of the national average, while 90.9% of the states without a death penalty have murder rates lower than the national average.

Once again the social science research provides compelling evidence against the death penalty as public policy. The death penalty does, invariably and without exception increase the number of homicides in jurisdictions where it is applied. This has been proven in Pennsylvania, California, Oklahoma and other jurisdictions. While it is too early to make an absolute assessment, my viewing of news reports since the McQueen death warrant was signed clearly indicates it is having that impact in Kentucky, with an outbreak of killings in Louisville and Lexington, as well as several other homicides across the commonwealth, far in excess of expected averages.

The Administration of the Death Penalty is Arbitrary and Capricious

In its 1972 Furman v. Georgia decision, the Supreme Court struck down the death penalty as arbitrary and capricious, with a significant potential for racial discrimination. In the post-Furman era states have revised their death penalty statutes in an attempt to reduce arbitrariness by "bifurcating" juries, specifying aggravating and mitigating factors for jury consideration, and specifying more clearly death penalty offenses. Has any of this reduced the arbitrariness of the death penalty?

The research literature answers this question with a resounding, NO! In the post-Furman era defendants in capital cases are charged differently and treated differently for no apparent or logical reason (Berk, et al., 1993; Gross and Mauro, 1989; Paternoster, 1991). Sometimes, defendants committing similar crimes with similar criminal histories are charged with capital murder, sometimes they are not. Some get the death penalty after convictions, some do not. Even within the confines of the same state, operating under the same criminal code, varying jurisdictions render varying results. The fact is that even under "reformed" capital punishment statutes, the death penalty is more like a state lottery than a considered act of justice. As one researcher puts it: "... being sentenced to death is the result of a process that may be no more rational than being struck by lightning" (Paternoster, 1991: 183).

Racism and the Death Penalty

The one aspect of the capital punishment that is sure and certain is that it is blatantly racist. In capital cases the lives of whites are valued far more than the lives of black victims (Baldus et al., 1990; Paternoster, 1991; Radelet, 1981). Prosecutors are far more likely to seek the death penalty when the victim is white than when the victim is black. In addition, juries are far more likely to hand down death sentences when the victim is white.

On the other hand, considerable evidence exists that black defendants are more likely to receive the death penalty than white defendants. Between 1930 and 1966, African-Americans represented 54 percent of all the people executed in the U.S. and 90 percent of all the people executed for rape (Bureau of Justice Statistics, 1992: 684). When the case involves a black defendant and a white victim the prospects of a capital prosecution are almost invariable (Baldus et al., 1990). In fact, post-Furman research shows that African-American defendants who kill whites have about a 25 percent probability of receiving the death penalty, while whites who kill African-Americans have a zero percent probability (Bowers and Pierce, 1980; Baldus, et al., 1990).

David Baldus and his associates looked at 594 murder cases in the state of Georgia. They carefully controlled for all legally relevant variables, such as the number of "aggravating factors." They found that prosecutors sought the death penalty in 45 percent of the cases with white victims but only 15 percent of the cases with black victims. Furthermore, they determined that prosecutors sought the death penalty in 58% of the cases with black defendants and white victims, but only 15% of the cases with black defendants and black victims. Juries imposed the penalty of death in 57% of the cases with white victims but only 42 percent of the cases with black victims. The researchers concluded that race had a "potent influence" on both the likelihood that the state would seek the death penalty and the likelihood that a jury would return a death verdict (Baldus, et al., 1990: 185).

In a similar study of 300 capital murders in South Carolina involving aggravating felonies, Raymond Paternoster (1984) found that in cases with white victims prosecutors were two and one-half times more likely to seek death than in cases with black victims. In cases with black offenders and white victims the state sought the death penalty 49.5% of the time. In black offender-black victim cases the state sought the death penalty only 11.3 percent of the time. In addition, in cases with white victims prosecutors tended to seek the death penalty with only one aggravating felony, while in cases with black victims they sought the death penalty only in cases with several aggravating felonies, thereby indicating that homicides against blacks had to far more vicious and brutal in order to justify the death penalty. Paternoster concluded that "victim-based racial discrimination is evident in prosecutorsí decisions to seek the death penalty" (Paternoster, 1984: 471).

Adequate Representation and Wrongful Conviction

The fact of the matter is that virtually all defendants in death penalty cases are poor and unable to afford private counsel. As a result they are represented by public defenders or court-appointed counsel, who are often inexperienced and not well trained in litigating a capital case. As a result, major evidentiary and procedural issues donít get raised at trial. It is ironic that in the most complex of criminal cases, defendants are usually represented by counsel least equipped to handle complexities. The criminal justice system as a whole discriminates by a factor of over 4-1 against defendants who must accept the services of public defenders and court-appointed counsel (Blumberg, 1967). The fact of the matter is that the death penalty is awarded to the lowest bidder time and time again. In addition, inadequate funds and resources to gather evidence, interview witnesses, and pursue scientific evidence handicap defendants in these cases. Similar problems plague the defendant all the way through the appeals process (Coyle et al., 1990; Smith, 1995).

Lack of adequate legal representation, prosecutorial and police misconduct, judicial and juror prejudice can all combine to result in wrongful convictions, a far more common occurrence that most people have been led to believe. The fact is that a minimum of 1 percent of all felony convictions are mistaken or wrongful convictions (Huff et al., 1986). Research on the death penalty has demonstrated over 350 "miscarriages of justice" since 1900. Including several in the post-Furman period, where defendants were convicted of potentially capital crimes even though they were innocent. Of these defendants, 139 received the death penalty and 23 were in fact executed (Bedau and Radelet, 1987; Radelet et al., 1992).

Conclusion

As a criminal justice scholar, I am constrained to make my judgments on facts, not emotions, not popular ignorance, not superstition and prejudice masquerading as religion. It is my judgment that the death penalty is bad policy and is in fact criminogenic in its social impact. That is also the judgment of almost all my colleagues in Kentucky and in the nation as a whole. The American Society of Criminology, an organization made up of the best researchers and scholars in the country, has by a virtually unanimous vote condemned the death penalty. That judgment is not based upon vague conceptions of morality, it is based on rigorous evaluation of the state's two primary responsibilities: (1) to protect the public health and safety; and (2) to provide equity, fairness and justice to its citizens. The death penalty is anathema to both goals. It is the worst kind of crime-control policy.

GARY POTTER, Ph.D.

Professor, Police Studies
Eastern Kentucky University
467 Stratton Building
Richmond, Kentucky 40475-3131
Tel: (606) 622-1978

Gary Potter is a professor of Police Studies at Eastern Kentucky University. He has published numerous books and articles on organized crime, drugs and drug policy, white-collar crime and corruption, and crime control policy.

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