Death penalty: history, arguments, and policy

Death Penalty

One of the most contentious issues in contemporary America is the continued use of the death penalty against certain offenders. For supporters, the death penalty is valuable because they believe it acts as a deterrent against further crime, and implicitly argue that the state is well within its rights to execute citizens. Those who argue for the abolition of the death penalty point out that by any reasonable metric, the death penalty does not act as a deterrent, and even if it did, the state does not have the Constitutional authority to perform executions, especially when they are applied as unevenly and unaccountably as has been the case in America. After examining the evidence for both sides, it becomes clear that the death penalty does far more harm than good and furthermore that most support for the death penalty either rests on faulty logic, such as the claim that the death penalty works as a deterrent, or is based in a highly subjective, and often religious understanding of the ethical limitations of the state. With all these factors in mind, it becomes clear that the death penalty should be abolished, due to its lack of efficacy as a deterrent as well as the long history of ethically questionable practices regarding it actual use, which includes the disproportionate execution of blacks over whites as well as the not very well-mitigated risk of executing innocent citizens.

Before examining the arguments opposing the continued use of the death penalty, it is necessary to consider the origins of its widespread support and what that means for the larger argument. The most common argument in support of the death penalty is the idea that it acts as a deterrent for potential offenders, with the fear of death so intimidating potential offenders that they refrain from murder or some other violent act that might precipitate the application of the death penalty. Numerous studies examining crime rates in connection with execution rates have not shown a deterrent effect for the death penalty, and although this evidence is overwhelming enough, some researchers have argued that differences in state law make using the execution rate alone insufficient for an analysis of possible deterrent effects.

Specifically, "the distribution of execution is seriously skewed among states" so that "for the period of 1995-2006, the total number of execution in the United States is 792, but Texas alone has executed 294 prisoners in the same period, which accounts for 37.12% of all executions" (Choe 2010, p. 12). Furthermore, considering that "the top three states; Texas, Oklahoma (80 executions) and Virginia (74 executions), executed 448 prisoners, which is 56.57% of total execution" and that "this percentage goes up to approximately 80% if we include the next five states," it becomes clear that in order to fully rule out the deterrent effect as a possible beneficial result of the death penalty, a different standard other than execution rates must be used (Choe, p. 12). Thus, "instead of using execution rate," a useful 2010 study uses "dummy variables to categorize states into different groups and to compare the group mean homicide rates" as a way of examining possible deterrence without being hampered by the uneven distribution of executions across the states. However, even "with state-level panel data from 1995 to 2006, this paper failed to find meaningful deterrent effect of death penalty," and in fact, "even the state with most execution record does not have statistically meaningful lower homicide rate than no death penalty states" (Choe, p. 15). Thus, regardless of the analysis method, the data simply does not support the claim that the death penalty acts as a deterrent. This fact is necessary to state unequivocally, because the so-called deterrent effect is the prime argument in favor of the death penalty specifically because it can ostensibly be backed up by observational data.

As the data actually shows, however, this deterrent effect is not real and so any further use of the deterrent effect as an argument in favor of the death penalty rests on the ignorance of the hearer rather that the legitimacy of the data. Thus, in order to discover the reasons behind the continuing widespread support of the death penalty even in the face of evidence that it does not work, it will be necessary to examine the beliefs and attitudes which inform death penalty support.

Because the oft-claimed reasons for supporting the death penalty, such as an imagined deterrent effect, have been so repeatedly and thoroughly debunked, a number of studies have examined the underlying beliefs and attitudes which inform death penalty support in order to determine the cause of its still-majority support. The most overwhelming result from these studies is evidence showing that death-penalty support is highly value-expressive, meaning that people's support for the death penalty is highly-dependent on the values they seek to embody and express elsewhere, especially including their religious beliefs. The importance of these values and beliefs are such that in one study, "although a majority of respondents support the death penalty, a substantial proportion lack confidence in its use and support a moratorium on executions," and although a large number of respondents were not entirely comfortable with the death penalty, "of those lacking confidence and those supporting a moratorium, strong majorities maintain support for the death penalty (68% and 73%, respectively)" (Vollum, Longmire, & Buffington-Vollum 2004, p. 521). Before examining these facts in greater detail, it is worth taking a moment to point out the objective reality demonstrated by these initial numbers alone, because when it comes to public opinion, the death penalty is something of a special case. As opposed to something like taxes, the successful application of the death penalty always ultimately results in someone's death, so it is reasonable to presume that any argument in favor of it must necessarily bring to bear overwhelming evidence as to its efficacy and the desire of the populace for it. Reality, on the other hand, shows that even people who "lack confidence" in the death penalty support it nonetheless, a stunning revelation considering that of all areas of public policy, the death penalty is one of those few in which total confidence should be established beforehand. Sadly, as this is not the case, it is necessary to examine the underlying responses more closely in order to determine the origin of these conflicting opinions in regards to the death penalty.

In the aforementioned study of confidence in the death penalty, the researchers found that although "more than one-third of subjects reported little or no confidence that the death penalty is 'imposed fairly on poor people' or 'imposed fairly on minorities' (36% and 35%, respectively)," and that "a majority of respondents support a moratorium in order to protect innocent people from being executed (55%), to ensure competent legal representation during trial (55%), and to ensure acceptable levels of access to appeals (52%)," they did not support a moratorium in all cases, so "although respondents expressed much lesser confidence that capital punishment was administered fairly in terms of race or class, a majority were unwilling to support a moratorium on either of these grounds" (Vollum, Longmire, & Buffington-Vollum, p. 533). To understand how this cognitive dissonance can occur so readily, where injustice in relation to the administration of the death penalty is recognized, but not deemed sufficient to preclude it use, one must examine additional studies which further analyze death-penalty support and the beliefs behind it. According to another study by Vollum and Buffington Vollum (2010), "sex, race, political party affiliation, religion, and college major (criminal justice) were found to be significantly related to level of death penalty support," with "males and Republicans […] more likely to support the death penalty than their counterparts" while "black respondents were far less likely to support the death penalty than others" (Vollum & Buffington-Vollum, p. 25). This coincides with research demonstrating that "those who favor the death penalty were more likely to be males and Protestant," and that the death penalty is less likely to be applied to those defendants who express some religious belief (Hayward 2008, p. 120). These results demonstrate something which should be readily apparent but is rarely pointed out; support for the death penalty is much higher in those demographics less likely to suffer from it. This partially helps to explain one surprising result from the study: "criminal justice majors were found to be significantly more likely than other majors to support the death penalty." The study proposes some reasons why this might be the case, as "assuming that criminal justice majors know more about the realities of the criminal justice system (and, by extension, the death penalty system)" should "potentially [challenge] Marshall's hypothesis that knowledge about the death penalty reduces support for its use," but "another interpretation is that those who select criminal justice as a major are more likely to hold ideological perspectives in favor of the death penalty in the first place" (Vollum & Buffington-Vollum, p. 25).

In fact, the evidence suggests that both are true in a way; "contrary to Marshall's hypothesis suggesting death penalty support is largely instrumental and thus likely to change in the face of knowledge, much support for the death penalty is value-expressive," and so "support of the death penalty, in part, serves to manifest underlying and deeply held values. As such, it is unlikely to change in light of knowledge or information about the death penalty and its administration" (Vollum & Buffington-Vollum, p. 30). Furthermore, "those who scored higher on value-expressive attitudes were less accepting of information critical of the death penalty and, in turn, less likely to change their views in light of the information presented." Thus, the widespread support of the death penalty in the face of ample evidence suggesting both its functional inefficacy and unjust application is explained by the fact that much support for the death penalty is shaped by values and beliefs wholly separate from evidence or data, and as such those beliefs are largely immutable in the face of such evidence.

Thus far the death penalty has only been considered in general as it relates to people's support for it. As has been shown, not only does the death penalty lack any kind of deterrent effect, but its supporters are uniquely attributed in such a way that this lack is utterly incapable of dissuading them from their beliefs. In effect, the main support for the death penalty has been shown inadequate, and the main supporters have been shown to be, if not acting in bad-faith, then at least acting in such a way that no amount of evidence would be enough to dissuade them from the belief that the death penalty is useful and just. Thus, as support for the death penalty has been shown to be both indefensible, and where it remains despite this fact, unreasonable, it will be possible to move on to those arguments in opposition to the death penalty. Granted, a lack of evidence in support of the death penalty should be enough to preclude the authorized killing of individuals on the part of the state, but just to be overwhelmingly clear, there are numerous arguments against the death penalty in addition to its inefficacy, and one of them (perhaps the most damaging) will be considered here.

As has been previously mentioned, the death penalty has been applied unequally when it comes to blacks and whites, with blacks far more likely to receive the death penalty than whites, especially when the victim is white. (This corresponds to a much higher opposition to the death penalty among blacks.) This alone should be enough to discourage the use of the death penalty, because even if there death penalty brought a resultant deterrent effect, the injustice of its actual application would suggest something fundamentally wrong with its use in society (as evidenced by the fact that death penalty support is largely value-expressive, and so reflects the prejudices of its supporters). However, this injustice has not been enough to abolish the death penalty, and neither has the argument that the death penalty represents cruel and unusual punishment, in opposition to the 8th amendment to the United States Constitution. In fact, the Supreme Court has ruled that the death penalty is constitutional as long the phases of the trial concerning guilt or innocence and the ultimate consideration of the sentence if guilty are separate, and so this point is where the most successful argument against the death penalty will be found. An important study by Lynch and Haney (2000) "links two previously unrelated lines of research: the lack of comprehension of capital penalty-phase jury instructions and discriminatory death sentencing" (Lynch & Haney, p. 337). The researchers found that "the picture of capital jury decision-making that emerges from this experimental study is complex and disturbing," with "strong indications that the defendant's racial characteristics influenced how these predominantly white participants interpreted the evidence that was presented to them," to the point that "the differential use of mitigating evidence helped account for the imposition of over 20% more death sentences on black than white defendants" (Lynch & Haney, p. 353). These results were only exacerbated the more confused the jury was in regards to its instructions for the sentencing phase.