Capital punishment in America

Public Interest, Fall, 2002 by Nelson Lund

NOTWITHSTANDING its somber subject matter, Stuart Banner's The Death Penalty: An American History (t) is a joy to read. Besides being lucid and informative, Banner is almost preternaturally even handed in his presentation of the arguments that have been offered for and against the death penalty. Despite the book's many virtues, however, it is unlikely to offer a significant contribution to our contemporary policy debates.

Simplifying Banner's story, one can divide the history of American capital punishment into three main phases. From the earliest colonial times until the late eighteenth century, executions were rare, spectacular, and utterly noncontroversial. The sentence of death was imposed for a wide range of crimes--including such infractions as burglary, adultery, and counterfeiting--but executions were seldom conducted. As alternative punishments for these crimes were apparently not common either, the death penalty must have been an effective deterrent, or other factors must have prevented crime from getting out of control. Presumably because of inadequate data, Banner does not explore this question. In any event, the executions that did occur were typically attended by large and solemn crowds that witnessed a religious and political ritual designed to awe the audience and confirm the community's condemnation of crime. There is apparently no evidence of any principled opposition to capital punishment during this period .

In the late eighteenth century, controversy began to arise. The invention of prisons provided an alternative means of incapacitating dangerous criminals. Perhaps more important, the spread of ideas associated with the Enlightenment offered a challenge and an alternative to more traditional beliefs about morality and justice. With respect to capital punishment, the debate between these alternatives crystallized quickly, and nothing very significant has been added to it since. For almost two centuries, the debate has gone back and forth, and the use of capital punishment has gone up and down. The range of crimes for which death was authorized declined; juries varied in their willingness to impose capital punishment; governors frequently commuted a significant fraction of death sentences; and some states abolished the practice completely. But a genuine consensus in favor of abolition never developed, and some states that did away with capital punishment subsequently brought it back.

Although there had been fluctuations in its use and popularity, capital punishment may really have looked like a relic by the late 1960s. The practice had been abolished in 14 states (the most ever), and national opinion polls showed only a small plurality in favor of retaining it. In any event, executions had stopped. In 1960, 56 people were put to death. That number dropped to seven in 1965 and to zero in 1968.

In 1972, the U.S. Supreme Court inaugurated the third chapter in the story. In a sharply divided and confused decision, the Court invalidated all existing death penalty statutes, though without declaring the practice unconstitutional per se. This was followed by an extraordinary revival of enthusiasm for capital punishment, the enactment of new statutes, and an enormous increase in executions. By the end of the twentieth century, 38 states plus the federal government authorized capital punishment, some 600 executions had been carried out in the previous two decades, and death row contained over 3,000 people.

THE principal arguments for and against the death penalty have changed little. As most people know, the practice can be thought to serve at least three purposes: incapacitation, deterrence, and retribution. The debate revolves around the propriety of the last purpose and around the efficacy of capital punishment in serving the second purpose.

Incapacitation is the least controversial issue. Execution incapacitates criminals perfectly. Prison also incapacitates them, but imperfectly: The prisoner may be released or escape, and in any event may continue to commit serious crimes, including the murder of guards or fellow inmates. However, such behavior can be reduced to low levels through measures such as abolishing parole and constructing expensive, high-security facilities for the most dangerous criminals.

Deterrence is generally thought to be a permissible purpose for punishing criminals, but nobody knows whether our current use of the death penalty in fact deters crime more effectively than imprisonment. There are good reasons to believe that the death penalty's relative deterrent effect might vary considerably depending on the frequency, certainty, and consistency with which it is imposed, the range of crimes to which it is applicable, the nature of the imprisonment scheme with which it is compared, and even the amount of public spectacle with which executions are conducted. As Banner notes, empirical studies of our current practices have generated mixed results. I believe that the evidence of a deterrent effect is stronger than Banner allows. But even if there is no demonstrably strong advantage for capital punishment, that could be the result of it not being used often or consistently enough.