The defenders of capital punishment are well aware that the statistical evidence is unanswerable. They do not contest it; they ignore it.

~ Arthur Koestler
Deterrence

7/28/2002

In the mid eighteenth century Cesare Bonesano, Marquis of Beccaria, the social reformer at whose urging Catherine the Great abolished the death penalty in Russia for all crimes except treason, lamented the “useless prodigality of punishments, by which men have never been made any better.” Immune to both carrot and stick, the sociopathic personality has always appeared equally impervious to the rewards of civilized living and the consequences of criminality. No science existed, in those days, to support the intuition that, common sense notwithstanding, an unending supply of fresh rascals seemed to replace those removed by the gallows, save the undiminished likelihood of having your pocket picked during public executions.

With the keeping of improved crime statistics came the possibility of taking a more objective look at the evidence for deterrence. The best test would seem to be the “dangerous experiment” of a society discontinuing executions and then waiting, notebooks in hand, to document whether the dire predictions of proponents actually come true. In theory, restrained neither by common decency nor threat of termination, free to rob, murder and rape with impunity from the hangman, unsocialized people should proliferate and their destructive deeds multiply unchecked among us.

Among the first recorded efforts at such a dangerous experiment was the 1836 abolition, in England, of the death penalty for forgery. (Oddly enough this was pursuant to a petition not by humanitarians but by bankers, exasperated by the reluctance of jurors to bring lethal guilty verdicts in forgery cases.) In the three years following this abolition, the number of offences declined from 213 in the previous three years to 180. Reduction of the number of capital offences continued into the “hungry forties” in England, at the conclusion of which it was acknowledged by His Majesty’s Commission on Criminal Law and members of the House of Commons that the repeals had been accomplished “with property quite as secure and human life quite as sacred.”

Public executions ended in England in 1868, as an odd consequence of the recommendation of a Select Committee of the House of Lords (1856) which studied innumerable case histories and concluded that public executions did not deter from crime and should be discontinued. The recommendation was ignored, but was confirmed again by the Royal Commission of 1866, which reported a statement by the prison chaplain in Bristol that out of 167 persons awaiting execution there, 164 had previously witnessed at least one execution. People apparently were not attending hangings for the right reasons
1, and were failing to contemplate the moral lesson by which they might be deterred from crime. Two years later, Parliament concluded from this that if public hangings did not deter from crime, private hangings remained the only alternative. By this peculiar logic, a more effective deterrent would be administered to the public by means of tabloid announcements describing the execution itself and maybe appending explicit messages, such as that crime does not pay, for the slow of mind. (Perhaps Parliament also envisioned that pickpockets would have less luck robbing people who were reading their newspapers than people distracted by “live” executions.)

In the past 100 years, the abolition of the death penalty by progressive nations has made possible a precise statistical comparison of the apparent effect of both death penalty repeal and mitigation on specific crime rates, including murder, both before and after abolition in a given country and between similar countries with differing laws. A grand summary of evidence from criminologists worldwide was undertaken by the British Parliamentary Select Committee of 1929-30 and the Royal Commission on Capital Punishment of 1948-53, resulting in a combined 2200 pages of report and evidence. The Select Committee concluded: “...that capital punishment may be abolished in this country without endangering life or property, or impairing the security of society.” And the unanimous report of the Royal Committee: “There is no clear evidence of any lasting increase (in the murder rate following abolition) ...It is therefore important... not to base a penal policy in relation to murder on exaggerated estimates of the uniquely deterrent force of the death penalty.”

A series of particularly unjust hangings in the 1950’s, including that of a 19 year old retardate named Derek Bentley who had been in police custody when an accomplice committed the actual murder, aroused a public outcry and strengthened the abolitionist movement in England, leading to a moratorium and finally the enactment of the Homicide Act of 1957. This act restricted the crimes for which the death penalty could be invoked. The number of executions between 1957 and 1964 decreased to 1/4 the level of the prior six years, with no notable increase in the homicide rate. The Labor Party ousted the Conservatives in 1964, and promptly passed the Murder Act of 1965 over the dire protests of former Home Secretary, Sir David Maxwell-Fyfe, the “Texas Governor” who had refused to commute the sentence of Bentley 13 years earlier. A continuing decrease in capital crime confirmed the success of this final experiment, and on 18 December, 1969, Great Britain became officially free of the death penalty. Just as it should be noted that few places are more dangerous than Texas or Nigeria, few places are safer than England.
2

Today, with an overwhelming body of statistical evidence at our disposal, we can go beyond the statement that the deterrent effect of the death penalty is inconclusive, and say with certainty that its deterrent value is nonexistent. To argue it further is to ignore the obvious. It is to embrace a willful ignorance comparable to the Flat World Theory or the creationists’ denial of the presence of fossils.

Many do, in fact, continue to make the claim. without which death penalty advocacy itself becomes vulnerable to a number of disturbing questions.
3 The ability to stand your ground in the face of the obvious is not, unfortunately, lacking in certain stalwart souls. “Statistics lie!” they will declare when faced with unfavorable numbers. The glaring absence of any sustained correspondence whatsoever between capital crime and capital punishment (such as can be shown between poverty and crime, social injustice and crime, etc.) is not due to a plot by bleeding heart liberals to cover up the truth, any more than Mesozoic sea shells in our limestone are evidence of Darwinist mischief.

Statisticians are aware that one set of numbers is always subsequent to another set of numbers. To make the claim that one set is the consequent of the other requires at the very least a consistent observation. Wax does not sometimes melt when heated. If from time to time it melts without heat, or is heated without melting, the causal link must be sought elsewhere. Compiling a lengthy documentation of the times when the experiment goes in one direction does nothing to support your argument so long as a similar list could be compiled showing the opposite. The response of the crime rate to the hangman is like this, sometimes up, sometimes down.

Though they are not constrained to tell the whole truth, statistics don't lie. Uncritical conclusions drawn from statistics can get quite fanciful, especially if numbers that weaken or disprove an argument have been discreetly omitted from consideration. The ability to recognize the logic of hoodwink is one of the reasons our parents sent us to school. I would be willing to admit that a murder rate exceeding the national average combined with an execution rate that is off the charts in the State of Texas does not prove that capital punishment contributes to violent crime. Nor does it make much of a case that dragging all those killer cowboys off to Huntsville is making Lone Star society any sweeter. All we know is that, for God knows what reasons, Texans across the board tend to be statistically more homicidal than the rest of us.
4

If the illusion of a causal bond seems sometimes to hover between quantified crime and quantified punishment, it has the fluid character of puppet strings between passing clouds. Instead of A neutralizing B, A joins with B and becomes C, like the cycle of violence in which we become what we hate. As residents in a material world we harbor a primal wish to control our environment, especially that part of it that pulls a gun on us at the Minute Mart. We prefer simple handles, the direct action of billiard balls imparting movement one to another, the reassuring immediacy of switches, triggers, locks, syringes. But what if the villain here were more like the wind? I tend to think we should be looking for causes of this more important sort, a common matrix containing cops, robbers, victims, lawmakers, citizens, Gary Gilmore, Johnny Cash and the Governor of Mississippi - an ambient malevolence that comes through and nudges everybody, on both sides of the law, like a summer zephyr, carrying us all along together in a bad direction. A larger remedy is needed if you don't like the way the wind is blowing generally.
5 Christians call it a change of heart. The whole thing has to come to a stop.

Unfortunately, it is not really a rational debate. Positions for and against capital punishment tend to be rooted in private beliefs and psychological predispositions, and are only subsequently bolstered by facts and logic. End runs around the evidential imperative take the form of radical subjectivity, exemplified by President Bush’s declaration: "I believe in the death penalty. I think it saves lives.” Stated in the form of a private opinion, the argument from personal ignorance is unassailable. Mr. Bush believes the death penalty saves lives, and that's a fact.
6

I don't have anything else to say about the deterrence myth. Among informed people it is universally recognized to be pure hokum. You may, if you wish, persist in believing in it, just as you may refuse literacy or hold yourself beyond the lifelines of education. If, on the other hand, you are seriously looking for a causal link between capital crimes and some controllable variables, some bona fide opportunities for intervention, look at the poverty level. Look at crowding. Look at inequity and injustice and poor education and filth. Look at that little map of the past years’ homicides that they used to print every January in the Tucson paper, and see how the clusters of pins follow the railroad track right through the low income part of town. Deal with that, and you've got credible deterrence.

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Why is the death penalty not a deterrent? On the face of it, it should be. A certain savage comeuppance is promised by our hanging politicians whose mission is to pursue killers, terrorists, drug smugglers et al, and deal with them so harshly that their fellow evildoers will take notice and go straight. As much as you would think this would occur, it does not. Crime and punishment fit together nicely in book titles, but on the street they seldom pop up at the same time in the minds of actual felons.

Corporate crooks offer us one clue, in stark caricature: hubris. Professional criminals are sociopathic, i.e. they take satisfaction in the idea that they are pulling fasties on everybody. They truly do not believe they will get caught, which renders any degree of penalty moot and irrelevant. A certain amount of gamesmanship motivates the professional or habitual scalawag. The element of danger or “beating the odds” flavors the reward of success beyond the material benefit. The defiance of authority, whether the tyrant is God Almighty, King George, the WTO, the SEC, the Arizona Criminal Code or the guy with the key to your cell, is among the most powerful components of the human spirit at every level. Suppressing this mentality with the threat of terrible consequences only adds psychological fuel to the fire.

Most criminals are not professionals, and most capital crimes are situational or passionate in nature, occurring when a lesser crime goes awry, or in the heat of confusion, chaos and poor judgement. Most would probably undo their deeds if they could back up the clock. Why does the spectre of the injection gurney not stop them in time? Because people who are committing capital crimes are not, at that moment, thinking about such things. Capital crimes rarely offer moments of leisure or abstract reflection. Perpetrators are extremely busy doing what they are doing. They are furious with their wives, paniced because an alarm has gone off, running from the cops, in the middle of a sour drug deal, stoned on crack, humiliated beyond endurance, stupid beyond belief, blind with rage, grief, pride, desperation, gang loyalty, you name it, and they are just not in a frame of mind to receive or prioritize the message that their “tough on crime” governor and legislature are trying to send.

That they are unconstrained by any device society has yet contrived does not therefore excuse any of the above souls from responsibility for their deeds. What we might do with the understandable outrage we feel toward them because of the damage they do is a good question and another subject. The limited purpose of this piece is only to attempt to remove from our already-muddied thinking the vacant notion of deterrence in capital crime, with the more distant goal that we might someday free ourselves from the degradation of maintaining these last sordid vestiges of public cruelty and exemplary death, and move along, as many societies have already done, to better things.

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Notes

1 It is not a serious statement. As we know, people attend executions to watch some poor sonofabitch die. There is seldom much edification in the desire to witness people being put to death, although historically the entertainment value of executions has been too obvious to deny.

2 The total annual murders in Great Britain in the late 1980’s was only slightly higher than that of Pima County, Arizona in recent years, that is, an entire nation with no death penalty, compared to a single U.S. county which is also #1 in the U.S. for sending people to death row.

3 The argument from deterrence presents itself as an objective question, citing the indisputable right of society to protect itself, and resting on the factuality (as supported by evidence or lack thereof) of the deterrent effect of punishments. When this argument fails, we find ourselves simply incorrect, merely mistaken, and hopefully we change our belief. Proponents of the death penalty, however, may (and do) continue to make their case, even if non-deterrence is conceded, falling back on issues of justice, scriptural injunctions of the “eye for an eye” variety, revenge, “closure” for victims, etc. This set of justifications is easier to debunk, since rather than the painstaking interpretation of a complex database of sociological facts, the psychology of cruelty can be brought to bear, and a clear history of human pathology can be trotted out as evidence. Proponents who fail to make their case on this ground run the risk of standing together with Mme. LaFarge and the Marquis de Sade and bloodthirsty lynch mobs from Palestine to Missouri. This is why the deterrence defense is so important to DP buffs. It’s the only round they can lose without risking a glimpse of a sordid inner disposition most of us would rather not reveal.

4 I have in front of me an example of statistical flimflam in the form of a column by Jeff Jacoby of the Boston Globe, who cites favorable statistics from his almanac. You can neither dispute nor extrapolate from the particular numbers he chooses, notably the dramatic reduction in the overall U.S. murder rate between the resumption of executions in 1982 and to the present. The graphs below illustrate what he fails to tell us, i.e. that this decrease occurred primarily in states which did not reintroduce the death penalty. Additionally, in every year shown, death penalty states had significantly higher murder rates. Wrong conclusions can be the result of omitted information such as the above, or highly selective facts such as the decline in total murders in Harris County (Houston), Texas during the same period - a 72% decline! Harris county is indeed to be congratulated for lowering its homicides from 701, a whalloping 3+% of total U.S. murders for that year, down to a merely frightening 241. (If it weren't for the death penalty, it might have been necessary to quaranteen Houston off from the civilized world!) Like tempers in that neck-of-the-woods, the murder rate tends to show unpredictable fluctuations. Equally dramatic figures are available in support of every possible outcome. You've got to have all of the numbers in front of you, or somebody is going to come along with only part of the truth and try to sell you some kind of snake oil. And the perennial fact remains that when you actually do have the entire almanac of figures in front of you, you will not find that the hangman is saving any lives.

5 It is reminiscent of a Freudian neurosis (which the Good Shrink in fact extended to all of society): You can not escape a neurosis by solving the problems posed by the neurosis. The cure comes when you get sick of being sick.

6 Given a choice between two routes in a maze, laboratory rats, like ourselves, will pick the one that seems most likely to lead to the cheese. After a certain number of trips with no cheese at the end, rats will eventually go down the untried, less likely path, just out of exasperation. Only human beings, our brains unable to let go of the idea of where the cheese ought to be, will continue to pick the wrong path over and over without end.

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