Time To Kill The Death Penalty?


Posted on 27 June 2012

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By John J. Donohue
National Bureau of Economic Research

Forty years ago this week, the U.S. Supreme Court in Furman v. Georgia struck down the death penalty on the ground that it was applied in an arbitrary manner. Four years later, the Supreme Court accepted the constitutionality of “new and improved” death penalty statutes that were supposed to eliminate the defects condemned in Furman. In bringing back the death penalty in 1976, the Court also cited studies suggesting that executions save lives.   

Four decades later, there is plenty of evidence that the death penalty continues to be applied in an unfair manner and not a shred of evidence that the death penalty deters.

This is not to say that death penalty supporters have not repeatedly offered studies claiming to show deterrence. Indeed, such widely-trumpeted but wholly unreliable studies have appeared at critical moments to try to stem the waning support for the death penalty.

But all of these studies have now been properly interred. Recently, the prestigious National Research Council, affiliated with the National Academy of Sciences, concluded that studies claiming that the death penalty has a deterrent effect on murder rates were “fundamentally flawed” and should not be used when making policy decisions about the death penalty.   

Based on its examination of all deterrence studies over the past 35 years, the NRC panel concluded that previous research on the topic is “not informative about whether capital punishment decreases, increases, or has no effect on homicide rates” and “should not influence policy judgments about capital punishment.” Notably, the panel included conservative scholar James Q. Wilson, the former Ronald Reagan Professor of Public Policy at Pepperdine University, whose long-time support for the death penalty did not keep him from endorsing this finding.

As U.S. Supreme Court Justice John Paul Stevens wrote in a major death penalty case, “Despite 30 years of empirical research in the area, there remains no reliable statistical evidence that capital punishment in fact deters potential offenders.”  Justice Antonin Scalia countered that Justice Stevens’ conclusion was “not supported by the available data.”  Now, the blue ribbon National Research Council report shows that Justice Stevens was right and Justice Scalia was wrong.

At the same time, the evidence has been mounting across the country that, despite the supposed improvements endorsed in 1976, the death penalty remains hopelessly broken.  In announcing his opposition to the death penalty in 2008, Justice Stevens - who had joined the 1976 decision reinstating the death penalty - stated that "The time for a dispassionate impartial comparison of the enormous costs that death penalty litigation imposes on society with the benefits that it produces has surely arrived."   

Even earlier, Justice Blackmun, another supporter of the 1976 reinstatement, wrote that after struggling with the issue of capital punishment for twenty years, he had concluded that "the death penalty experiment has failed" and that it was time for the Court to abandon the "delusion" that the death penalty could be administered in a non-arbitrary fashion.   

Five states, most recently Connecticut, over the last five years have followed the worldwide trend in replacing capital punishment. This November, California voters will decide whether to replace the death penalty with a sentence of life without parole and divert a portion of the millions of dollars saved toward investigating unsolved rapes and murders and other measures.   

Currently, 46% of murders and 56% of rapes are not solved in California every year.  Centuries of evidence supports the idea that swift and certain punishment is a more effective deterrent than infrequent and delayed use of extremely harsh sanctions, so it would hardly be surprising if the California initiative succeeds that many innocent lives will be saved.  

Now it is up to California voters to decide whether they want to become the sixth state in six years to replace capital punishment with an effective alternative. We have the chance to prevent innocent people from being executed, end the unfairness that pervades the current system, and save millions in tax revenues, all while improving public safety.  In the words of Justice Blackmun, it is time for Californians to stop "tinker[ing] with the machinery of death."

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John J. Donohue is the C. Wendell and Edith M. Carlsmith Professor of Law at Stanford Law School and a research associate for the National Bureau of Economic Research.