Silly Notion

 In America’s war on crime, an obvious weapon is rarely used


Fifteen years ago George Brower, an economist at Moravian College in Bethlehem, Pa., advised a change of tactics for those who desire, as he did, the abolition of executions in America.

Death penalty opponents should point out “that the United States is the only industrialized country which imposes capital punishment,” Brower said. They should argue that executions are immoral, discriminatory and unconstitutional. But they should stop making arguments “which contradict our knowledge, both commonsense and academic, of human behavior.” [1]

The abolitionists, Brower complained, “persist in using a faulty claim: that the death penalty has not been established as a deterrent. To the contrary, there is substantial evidence supporting the deterrence hypothesis.”

Such evidence may come as news to those who haven’t gone looking for it. Though it has occupied a lot of print in legal and scientific circles, the major news media have largely ignored it.

In recent years, abolitionists have pursued all the arguments Brower recommended, and added another — the risk of convicting and executing the innocent — without being pressed to confront the risk their own activities pose to future murder victims. They and the reporters who cover them have adopted the stance columnist Molly Ivins took in 1997: “We are long past the silly notion that the death penalty deters anyone.” [2]

Ivins added that “the deterrent theory has been blown to pieces so many times that it hardly seems worth citing the studies” — an artful way of ignoring the several studies that blow away her theory. Washington Post columnist Richard Cohen, however, goes a step further and flatly denies their existence. In September 2000, he declared that “no one who has given the matter any thought could possibly believe” that “the specter of the hangman” deters murder. “Over the years,” he wrote, “crime figures have been analyzed and reanalyzed, and always the conclusion is the same: Capital punishment fails to deter.” (Emphasis added.) [3]

Ivins and Cohen have lots and lots of company. A Nexis search for some form of the idea that death does not deter yields well over a thousand hits, not counting those entries that state the case in order to dispute it. My personal favorite is this declaration in the Canberra Times: “There is absolutely no doubt whatsoever that the death penalty has no deterrent effect.” [4]

As we are about to see, such assertions are false. At best, they are an expression of conventional wisdom, reinforced by the smug, ignorant bigotry we have come to know as “politically correct.” At worst, they involve deliberate deceit.

It’s true, of course, that executions can’t deter everyone — just think of the suicidal killers who take their own lives along with those of their victims. But the belief so assiduously cultivated by people like Ivins and Cohen is at the opposite extreme: that executions deter no one. As Brower observed, the idea defies common sense.

But what is this evidence he spoke of? It starts from a negative: Merely having capital punishment on the books is not enough to produce a measurable deterrent effect. That was the conclusion of a famous 1959 study by University of Pennsylvania sociologist Thorsten Sellin, who compared murder rates in death-penalty states to those in similar states where the penalty had been abolished, and found no deterrence. [5]

As the idea that capital punishment is no deterrent took hold, its enforcement in the United States fell from over a hundred executions a year in the 1940s to none at all from mid-1967 to early 1977. This offered an opportunity to test the theory that abolishing capital punishment would not impair deterrence. That’s when things got complicated for George Brower.

For while executions waned, homicide waxed. Between 1960 and 1980 the nation’s per-capita murder rate doubled. Since 1992, it has been declining. And, just as murder’s liftoff in the ’60s coincided with the death penalty moratorium, its decline in the ’90s coincided with a resurgence of executions.

How much of this inverse relationship is more than mere coincidence? That’s what scholars have sought to find out.

In 1975, Isaac Ehrlich, an economist with the State University of New York at Buffalo, compared execution rates and murder rates over several decades and found that “after controlling for the effects of other variables, using the death penalty instead of imprisonment may have deterred approximately eight murders for each execution actually carried out.”

Those aren’t Ehrlich’s words. They’re from a summary of his results the United States included in its amicus curiae brief in Gregg v. Georgia, the 1976 case in which the Supreme Court upheld capital punishment. [6]

Sellin himself had admitted that his study told nothing about the deterrent effect of a death penalty that was actually enforced, as opposed to what have been little more than paper penalties. Nevertheless, academicians who had touted Sellin as the last word on deterrence came out in force against Ehrlich, finding his methodology flawed and the question of deterrence “definitely not a settled matter.” [7]

Now let Brower take up the tale: “Over the last 15 years, Ehrlich and others answered their criticisms. Studies by Professors Ehrlich, Walter Vandaele, Kenneth Wolpin, Stephen Layson, Llad Phillips and Subhash Ray, myself and others supported the deterrence hypothesis in general and the deterrent effect of capital punishment in particular, using a variety of methods and data from several countries.” [8]

That was 15 years ago. The scholars are still at it, but as far as the general public is concerned, what Brower said in 1991 still holds: “These more recent studies often are neglected by death penalty opponents.”

In 2000, for example, The New York Times leaped back to Square 1 with a survey comparing the 38 death-penalty states to the 12 abolition states and finding — lo and behold — no deterrence. Unlike Sellin, the Times didn’t even try to match up states with similar demographic and other factors. Its “study” controlled for nothing, looking only for the presence or absence of capital punishment statutes, and it said nothing at all about actual executions. [9]

Ehrlich estimated eight murders deterred by each execution carried out. Layson in 1986 put it at 18 — a result duplicated five years ago in a much-ignored Emory University study. [10] Maybe the real effect is only four, or two, or one. In any case, as long as death for murder is an extreme rarity, the effect will be hard to detect. And if it ever is to be visible to the naked eye, it ought to show up first in Texas, the state that in recent years has become notorious as having by far the busiest death row in America.

After the 1967-1977 hiatus came to an end, Texas, like the rest of the nation, was slow to resume capital punishment. Late in 1982, it carried out one execution, one of only two that year nationwide. In that year, 2,466 Texans died at murderers’ hands. The state’s per-capita murder rate was 16.1 per 100,000 inhabitants, far higher than 1982’s national rate of 9.1.

By the mid-’90s, the annual number of executions in Texas had risen into double digits. In 2000, murderers killed 1,236 Texans, and Texas carried out a record 40 executions, accounting for almost half of the 85 carried out nationwide that year.

Between 1982 and 2002, the nation’s murder rate fell 38 percent. Texas — despised by “progressives” as the execution capital of the nation — beat that trend by a little bit, with its murder rate falling 63 percent, to 6.0 per 100,000, scarcely over 2002’s national rate of 5.6. (This is even more striking when compared to the jurisdictions — 12 states and the District of Columbia — that have no death penalty. Their murder rate fell only 21 percent.) [11]

Does that prove deterrence? By itself, no. Who knows what other variables are at work? But researchers who’ve taken great pains to factor out those other variables think they’ve seen a deterrent effect — and the point is this: The burden of proof rests not with those who affirm deterrence but with those who deny it.

If a reasonable possibility exists that executions actually carried out will deter some murders, then the people put at risk by our failure to enforce the death penalty far outnumber the questionably convicted or otherwise disadvantaged death row inmates who are the focus of so much concern today. The ones put at risk are the hundreds of thousands of innocent men, women and children who will fall victim to criminal violence tomorrow, next year and on into the future.

If death penalty opponents are mistaken in denying deterrence, then their interference is itself a death sentence for those victims who would have lived, had they been protected by a credible — meaning swift and certain — death penalty. [12]

'Silly Notion' is an excerpt from Yo! Liberals! You Call This Progress?, available at Amazon.com or directly from Fielding Press. Parts of it first appeared in the Chattanooga Free Press and are reprinted by permission.


[1George D. Brower, “Death penalty: More effective arguments needed to reverse policy,” The Harrisburg Patriot, March 27, 1991, p. A7. [back]

[2Ivins, “Opposed to the death penalty,” Creators Syndicate column in The Chattanooga Times, June 11, 1997, p. A6. [back]

[3Cohen, “Hangman, Be Gone,” Washington Post, Sept. 26, 2000, p. A27. [back]

[4“Time to Take Howard’s Name in Vain,” Canberra Times, Dec. 14, 1997, p. 22A. [back]

[5Robert Bork et al., brief for the United States as amicus curiae in Gregg v. Georgia, Landmark Briefs and Arguments of the Supreme Court of the United States, v. 90, pp. 293-296, 332-339.

Sellin’s study, while influential, has not aged well. In 1994, Thomas Sowell commented: “The grand dogma of the opponents of the death penalty is that executions do not deter murder, although the 1959 study on which this dogma is based was so crude that it was laughable. Furthermore, it conflicts with more recent studies.”     ———Sowell, “Death penalty foes dishonest,” Creators Syndicate column in Rocky Mountain News, Dec. 14, 1994, p. 55A. [back]

[6Bork et al., Landmark Briefs and Arguments, loc. cit. [back]

[7Ibid; Ted Rohrlich, “Does Death Penalty Deter Killers? No Clear Answer,” Los Angeles Times, March 23, 1990, p. 1A.

Sellin observed: “Death is still the legal punishment for murder in Belgium, but it has, except for one ‘accident’ so to speak and after World War II against collaborators with the enemy, never been applied since 1863. Under such circumstances even the knowledge that persons are still arrested and prosecuted for murder and even sentenced to death in Belgium would contain no threat of death to potential murderers in that country. We arrive then at the conclusion that if the death penalty is to have any restraining effect there must be an adequate threat of execution, but no one has ventured to calculate how great the risk of possible execution must be in order to constitute an adequate threat.” Sellin then examined the death penalty in America since 1920 — an era in which the chance of a murderer’s actually being executed was scarcely 1 in 100 — and concluded: “The death penalty, as we use it, exercises no influence on the extent or fluctuating rates of capital crimes. It has failed as a deterrent.”     ———Sellin, The Death Penalty, pp. 20-63; Rohrlich, op. cit.

Left unexplored was that mysterious question of what degree of enforcement might pose “an adequate threat of execution.” Commenting on this in his amicus brief for the United States in Gregg v. Georgia, Bork noted: “The effects of mere statutory authorization of capital punishment tell us nothing about the effects of its use, as Sellin himself admitted.” In 1990, UC-Berkeley law professor Franklin Zimring told Rohrlich, “Maybe if we had 10,000 executions” there would be an observable deterrent effect. “I don’t know. But we don’t live in that kind of a world. We never have.” And so, with the apparent consent of Professor Zimring, we continue to live in a world where, rather than 10,000 murderers being put to death, we have 15,000, 20,000 or more innocent Americans being murdered. Every year. [back]    

[8Brower’s work is especially remarkable in view of his opposition to the death penalty. He lamented that “if capital punishment were ineffective,” the task of securing its abolition “would be easier, but wishing will not make it so. Since executions will continue while society is willing to accept responsibility for them, more effective arguments are needed.”

In his willingness to draw a conclusion that contradicts his preferences, Brower is unfortunately something of an exception, even within the academic world. That was shown most tellingly in 1996 by Florida sociologists Michael Radelet and Ronald Akers. Noting that “disagreements” are “evident in the scholarly literature,” they polled “leading criminologists who are not specialists in capital punishment research” and found that 84 percent thought the death penalty did not deter murder. However defensible such a view might be in light of the extreme rarity of executions, the poll respondents answered another question in a way that suggests either a lack of curiosity or outright bias. Only 18 percent of them agreed that “if the frequency of executions were to increase significantly, more homicides would be deterred than if the current execution rate remained stable.” Almost 80 percent disagreed, 34 percent of them “strongly.”     ———Radelet and Akers, “Deterrence and the death penalty: the views of the experts,” Journal of Criminal Law and Criminology, Sept. 22, 1996.

As Ehrlich observed, scholars who present evidence of deterrence “are running against the grain of entrenched ideologies.”     ———Thomas Palmer, “Justice plan draws ire, support,” The Boston Globe, Oct. 5, 1991, p. 25. [back]

[9The Times story ran along the same lines as a chart posted by the Death Penalty Information Center purporting to demonstrate the futility of the death penalty. The main talking point was that states without capital punishment (Alaska, Hawaii, Iowa, Maine, Massachusetts, Michigan, Minnesota, North Dakota, Rhode Island, Vermont, West Virginia and Wisconsin) had mostly lower murder rates than states that have a death penalty on the books. (In 1999, the per-capita murder rate for non-death penalty states was 3.6 per 100,000, on average, with the lowest being Iowa’s 1.5, and the highest being Alaska’s 8.6. The death penalty states meanwhile averaged 5.5 murders per 100,000, with the lowest being New Hampshire’s 1.5 and the highest being Louisiana’s 10.7.)     ———Raymond Bonner and Ford Fessenden, “States With No Death Penalty Share Lower Homicide Rates,” New York Times, Sept. 22, 2000, p. 1.

Neither the New York Times story nor the DPIC chart made any attempt to weigh the various social and cultural factors that would make the murder rate in Iowa differ from the rate in Louisiana. But it was good enough for the Washington Post’s Cohen, who wrote his “Hangman Be Gone” column in response. [back]

[10Layson’s figure is cited in numerous documents on the Web and in Nexis. For example: Peter Howe, “Death penalty bill raises issue of effect,” The Boston Globe, Dec. 2, 1991, p. 13.

The Emory study, by Hashem Dezhbakhsh, Paul H. Rubin and Joanna M. Shepherd, was dated January 2001, updated one year later and published in the Fall 2003 issue of American Law and Economics Review. It states in its abstract: “Evidence on the deterrent effect of capital punishment is important for many states that are currently reconsidering their position on the issue. We examine the deterrent hypothesis by using county-level, postmoratorium panel data and a system of simultaneous equations. The procedure we employ overcomes common aggregation problems, eliminates the bias arising from unobserved heterogeneity, and provides evidence relevant for current conditions. Our results suggest that capital punishment has a strong deterrent effect; each execution results, on average, in eighteen fewer murders — with a margin of error of plus or minus ten. Tests show that results are not driven by tougher sentencing laws and are robust to many alternative specifications.” ——— Dezhbakhsh, Rubin and Shepherd, “Does Capital Punishment Have a Deterrent Effect? New Evidence from Postmoratorium Panel Data,” American Law and Economics Review V5 N2 2003 (344-376), http://aler.oxfordjournals.org/cgi/content/abstract/5/2/344.

(The part about “tough” sentencing laws, Rubin explained, refers to the fact that whereas “three strikes” laws have a deterrent effect in themselves, executions have a further effect which they were able to measure as stated.)     ——“CNN Sunday,” May 13, 2001.

The Emory study was mentioned three years ago in a USA Today cover story by Richard Willing, who noted: “Recent studies at the University of Houston and at the University of Colorado at Denver had similar findings.” (Willing, “Death penalty gains unlikely defenders; Professors speak out in support of executions,” USA Today, Jan. 7, 2003, p. 1A.) And it gets a couple of dozen hits elsewhere in Nexis. But it has been ignored by ABC, NBC and CBS, The Associated Press, The Washington Post, the Los Angeles Times and almost all of the rest of the nation’s newspapers. The New York Times, the “newspaper of record,” whose motto is “All the News That’s Fit to Print,” has not seen fit to mention it. If America’s legal system is in fact throwing innocent people’s lives away by failing to execute murderers, a lot of journalists just plain don’t want to hear it — or tell it — like it is. [back]

[11Rates are calculated using data from the FBI’s Uniform Crime Reports, the Texas Department of Public Safety’s Crime Information Bureau, and the Death Penalty Information Center. 

Cohen, the man who gives this matter serious “thought,” wrote in “Hangman, Be Gone” that Texas is “far and away the nation’s No. 1 executioner — 231 since 1976, 144 under Bush and 32 this year alone. Still, somehow, Texas has a murder rate of 6.78 per 100,000 residents. The figure for Massachusetts is 2.0.” And that’s enough serious thinking for him. He doesn’t think to ask what Texas’ murder rate would be without executions, and what Massachusetts’ would be with them. As Emory University’s Hashem Dezhbakhsh points out, “that’s the right way of actually making the comparison.”     ——— “Fox Special Report With Brit Hume,” June 6, 2001. [back]

[12All this may be neither here nor there to someone who, like Brower, bases his opposition to capital punishment on grounds other than its supposed lack of deterrent value. Even if people are dying in deterrable murders, he may be quite prepared to let them die rather than let the government play a part he sees as immoral, uncivilized, un-Christian or unconstitutional. The fact is that those objections to the death penalty stand scrutiny no better than the no-deterrence claim did. (See Yo! Liberals! You Call This Progress?, chapters 2, 7, 8 and 21.) [back] 

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Copyright © 2006 by Karl Spence. All rights reserved.
Revised: 10/10/11 20:58:09 -0500.