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Capital Punishment/Death Penalty

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CORRECTIONS

GENERAL EDITOR
William J. Chambliss
George Washington University

KEY ISSUES IN Crime AND PUNISHMENT

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 1
Capital Punishment/
Death Penalty
William R. Wood
University of Auckland

T
here are many lively debates surrounding the ethics, efficacy, and
policy implications of capital punishment as they pertain to its use
within the United States. Globally, the United States is one of about
60 nations that regularly employ this type of punishment.
However, within the group of Western industrialized nations, it remains
the only country that routinely puts people to death. To the extent that the
United States shares similar legal and political systems with other Western
industrialized countries, it has not followed the trend of most European and
Western-hemisphere states that have abolished the use of capital punish-
ment within the last four decades.
Historically, what has been called the exceptionalism of the United States
is a relatively new phenomenon. While the abolition of capital punishment
was first argued by the Italian criminologist Cesare Beccaria in the late 18th
century, by the beginning of the 20th century, only a few nations had banned
this type of punishment, and it was not until the 1960s that the trend to-
ward abolition in European and Western Hemisphere countries began in
earnest. Thus, while the United States is unique among Western industrial
states in terms of the continued use of this punishment, in the long history of

1
2 Corrections

punishment in the Western world, it is the abolition of capital punishment,

rather than its ubiquity, that stands as an anomaly.
The history of the use of capital punishment begins in pre-modern times,
and continues its journey through Beccaria’s opposition to the practice, its
use within the United States, the growth of abolition in Western industrial
and Western Hemisphere states, and the current global distribution and fre-
quency of capital punishment in the early 21st century.
There are compelling arguments for and against the use of capital punish-
ment, particularly as they pertain to its use within the United States. Both
public and political positions, as well as academic research, surround these
debates, which center primarily on the following questions:

1. Do some people “deserve” to die?

2. Is the state justified in taking a life?
3. Does capital punishment deter violent crime and save lives?
4. Does capital punishment disproportionally effect and/or harm
minorities?

History of Capital Punishment

Capital punishment has been used for thousands of years. The earliest codi-
fied forms of law such as Mosaic Law and the Codex Hammurabi detailed
numerous crimes for which a person could be executed. The Greeks,
Romans, and other empires employed it frequently, both as punishment for
a host of criminal offenses, as well as a tool of political, economic, and cul-
tural domination. Prior to the 18th century, the use of capital punishment
was both common and unremarkable, and there was little controversy sur-
rounding the idea that some people deserved to be put to death.

Cesare Beccaria
The first widely influential opposition to the use of capital punishment
did not occur until 1764, when the Italian criminologist Cesare Beccaria
published his treatise On Crimes and Punishments. The work was immedi-
ate popular; six editions were published within the first 18 months of its
release, and it was translated into French by Voltaire as well as into numer-
ous other languages throughout Europe, and later, in the United States. The
root of Beccaria’s work was vested in the concept of the social contract, and
like many of his intellectual peers, Beccaria believed that the most just form
 Capital Punishment/Death Penalty 3

of government for the largest number of people was one in which individual
members freely gave up a small amount freedom in exchange for the benefits
of social order. Beccaria’s main interest, however, lay in the question of what
should happen when people violated this “social contract.” Beccaria recog-
nized that crime could be controlled through the brute force of absolutist
rule, yet such approaches negated any possibility of a freely chosen social
contract between individuals and their governors. He equally saw that the
lack of any restraint on individuals would lead to a system of social relations
where the strong perennially preyed on the weak—a state of affairs charac-
terized in Hobbes’s Leviathan as a “war of all against all.”
Beccaria’s solution to this problem was an elegantly simple, if ultimate-
ly flawed, proposition based in the utilitarian philosophy of social action,
which argued that people naturally seek to maximize pleasure and minimize
pain. Beccaria argued that as rational actors, individuals should be free to
act within a system of governance that upholds the requisite conditions of
the social contract, yet limits their ability to maximize pleasure at the ex-
pense of others’ pain. The only legitimate power of the state in cases where
the social contract was violated, he argued, was then in its representative
authority to deter violators through a system of gradated punishments that
mitigated the potential pleasure one might gain by violating the social con-
tract. To this end, Beccaria imagined the development of a correlate system
of punishments administered by the state—punishments that would ideally
represent only the amount of pain necessary to encourage individuals to ad-
here to the social contact, and to deter those who had violated the contract
from further crimes.
In the case of capital punishment, however, Beccaria argued against its
use for two reasons. First, he argued that life itself was a right that could not
be justly deprived by the state. Second, Beccaria argued that capital punish-
ment was a less effective form of deterrence than prolonged depravation
of liberty, insofar as he viewed the former as ultimately less concrete and
more transient than the latter. Violators and spectators, he argued, would be
more deterred by a more easily imagined threat of prolonged or “perpetual
slavery” than by the more abstract and unknowable experience of death. In
terms of his classical approach to crime control, Beccaria found many sup-
porters in his day. The implementation of the French Penal Code in 1791
and Napoleonic Penal Code of 1810 were based on his principles of rational
deterrence. Influenced by Beccaria’s work, Leopold II banned the use of cap-
ital punishment in Tuscany in 1786, and a small number of other countries
followed suit in the 19th century, including the Roman Republic (1849),
4 Corrections

Venezuela (1863), San Marino (1965), and Portugal (1867). However, it

would be another century before the roots of Beccaria’s opposition began
to seriously flourish in the rapid movement toward abolition in Europe and
other areas of the world that began in the 1960s.

The Rationality of Capital Punishment

Perhaps ironically, Beccaria died in 1794, in the middle of the Reign of
Terror in France that had introduced the guillotine as an enlightened al-
ternative to the humiliating and barbaric execution practices of the ancien
régime. The introduction of the electric chair some 100 years later in the
United States was similarly proposed as a humane and technological im-
provement over the use of hangings and firing squads. These two forms of
capital punishment stand in many ways as bookends for the shift that oc-
curred in Europe and the northern United States in the 19th and early 20th
centuries away from the spectacle of public corporal punishments, toward
an increasing bureaucratic administration of punishment via the deprava-
tion of liberty.
This movement was most evident in the rise of modern prisons in west-
ern Europe and the northern United States as a means of correcting socially
deviant and criminal behaviors. For several reasons, punishment became
increasingly wedded to the modern penitentiary: the profitable use of prison
labor, the rise of modern biological and psychological theories of crime, and
social reform movements that viewed corporeal punishment as antithetical
to values and principles of Christian charity and reformation. However, in
the case of capital punishment, while some reformers opposed it, public ex-
ecutions remained common throughout the 19th and early 20th centuries.
Rather, what changed during this period was the means by which people
were put to death. In line with what were considered the progressive values
of the penitentiary was the belief that even the most violent offenders should
be shown mercy, and that even the most extreme of punishments should
acquiesce to humane means. The guillotine (1792), electric chair (1890),
gas chamber (1924), and lethal injection (1982) thus represent a historical,
if discursive, gradient toward the rationalization of punishment under the
auspices of the modern state.
This rationalization included increasingly humane forms of execution
in the 19th century, but it also included the eventual eclipse of the public
execution itself. Social historians of death have noted that, beginning in
the 20th century in the United States and western Europe, death became
 Capital Punishment/Death Penalty 5

increasingly shielded from public view—occurring with more and more fre-
quency behind the closed doors of the hospital. Executions similarly moved
behind the walls of the penitentiary, with the last formal public execution
in Britain in 1868, in the United States in 1936, and in France in 1939. Yet
the idea that public executions were ceased as result of changing social at-
titudes toward death is only partially borne out in the research; executions
in the latter 19th and early 20th centuries regularly drew huge crowds. The
last U.S. public execution in Kentucky in 1936 witnessed a crowd of 20,000.
The last beheading in France in 1939 was a similarly public spectacle, and
was evidently such a drunken and rancorous affair that the “hysterical be-
havior” of the crowd prompted the French government to ban any further
public executions. In this sense, contrary to their long history as a tool of
social control and deterrence, public executions had become rather an in-
creasing threat to social order, and in particular, a threat to the growing
rationalization of punishment as a bureaucratic instrument of state power.

The Movement Toward Abolition

The 20th century began with only a small number of nations having
barred or abolished the use of capital punishment. As late as 1965, only
24 countries had either banned its use outright or ceased its use in prac-
tice. By 2008, however, approximately 90 countries had abolished capital
punishment, and another 30 had not executed anyone in at least a decade.
The span of these four decades arguably represents the most radical shift in
social attitudes toward the use of capital punishment in the course of writ-
ten history.
This shift is perhaps most acutely a geographic one. Western Europe has
seen the most complete shift away from the use of capital punishment, to
the extent that no western European nation currently allows for its use.
Following the breakup of the Soviet Union, a majority of eastern European
states have followed in this direction as well, with only Belarus, Russia, and
Latvia still allowing for its use. The second largest shift in the last 40 years
has been within Central and South American countries, particularly in the
increased democratization of Central and South American states following
years of repressive governments. Today, a majority of South and Central
American states have discontinued its use, although a majority of Caribbean
states still retain it.
The effect of these regional shifts toward abolition or desistance has been
that an increasing number of the world’s executions are concentrated in a
6 Corrections

smaller number of regions, mostly in Africa, Asia, and the United States.
Accordingly, in the last decade, roughly 90 percent of all executions have
occurred in a handful of countries—China, Iran, Iraq, Pakistan, Saudi Ara-
bia, Sudan, and the United States. The decreasing international distribu-
tion of capital punishment also represents its continued widespread use in
Islamic as well as in authoritarian states. Within Islamic states, only Turkey,
Turkmenistan, and Azerbaijan do not use capital punishment. Authoritar-
ian states include communist nations such as China, Vietnam, North Korea,
Cuba, and Laos; and other despotic or authoritarian governments such as
Burma, Zimbabwe, Belarus, and Singapore. Of these states, China by far
executes the most people; approximately 1,000 people in 2006, although
official figures from China are inaccurately low.

Capital Punishment in the Contemporary United States

With the exception of the 1972 Supreme Court decision Furman v. Geor-
gia, which temporarily barred most executions in the United States, capital
punishment has been used with regularity since colonial times, for a variety
of offenses. Today, state and federal laws, as well as the Military Code of
Justice, recognize numerous capital offenses. By and large, such offenses
include either premeditated murder and/or treason as a necessary part of
a capital charge. Beginning in the 1990s, several states passed laws that
allowed for aggravated sexual assault, kidnapping, hijacking, and other
crimes to be punishable by the death penalty, but the recent 2008 Supreme
Court ruling in Kennedy v. Louisiana has limited the use of the death pen-
alty to crimes resulting in the death of the victim, and crimes against the
state (i.e., treason or espionage).
Within the 20th and early 21st centuries, the use of capital punishment
has ebbed and flowed in relation to a variety of political, economic, legal,
and social considerations. In the first two decades of the 20th century—
buttressed by a strong abolitionist movement—the use of capital punish-
ment declined, and several states banned its use altogether. The influence
of abolitionism waned in the 1920s and 1930s, however, in response to
fears of communism following the Russian Revolution, the rise of Pro-
hibition and corresponding organized crime, and the Great Depression,
and the 1930s saw the highest rates of executions on record, at about 167
per year.
Support for capital punishment remained strong throughout World War
II and the 1940s, only to shift again within the context of the postwar boom
 Capital Punishment/Death Penalty 7

of the 1950s. The difference between the two decades is notable, where the
number of executions decreased by almost half, from 1,289 in the 1940s to
715 in the 1950s. By the 1960s, public support for capital punishment hit
an all-time low in the United States, where in 1964, a Gallup poll reported
that only 42 percent of Americans supported it use, and by the end of the
decade, executions had come to a virtual standstill.
The limiting of executions coincided with the landmark Supreme Court
case Furman v. Georgia in 1972, which halted the use of capital punishment
de facto on Eighth Amendment grounds in finding that its use was “arbi-
trary and capricious.” Many opponents assumed this represented the end of
capital punishment in the United States, but in 1976, the Supreme Court up-
held the constitutionality of capital punishment in Gregg v. Georgia, which
set forth capital sentencing guidelines through which states could reinstate
its use. Notably, the Court also ruled against the defendants in Gregg that
capital punishment was not unto itself “cruel and unusual,” as long as it
is applied within the use of objective criteria that allows for consideration
of the defendant’s character and record. Almost immediately, states revised
their laws in accordance with these guidelines, and the number of death
sentences began to rise, particularly as increases in crime rates and growing
social unrest in the 1970s shifted public support increasingly in favor of
capital punishment.
The election of Ronald Reagan in the 1980s was achieved in part on a
“tough on crime” platform, and in the early 1980s, both the public and state
legislatures returned en mass to supporting the use of capital punishment.
By 1984, public support for the death penalty reached an all-time high of
75 percent, and the number of people sentenced to death increased mark-
edly—although executions rose more gradually as a result of the mandatory
appeals process for capital sentences. Beginning in the 1990s, public support
for capital punishment slowly tapered to around 62 percent in 2007. How-
ever, the number of executions rose throughout the decade to a high of 98
in 1999, largely due to the exhausting of appeals from the increase in capital
sentences beginning in the 1980s, as well as to a general decrease in the use
of clemency, particularly in Texas. Since this time, the number of executions
has generally decreased, with 52 executions in 2009.
Legally, the Supreme Court has heard over 30 cases regarding specific ap-
plications of capital punishment since its reintroduction in Gregg v. Georgia
in 1976. In 1987, the Court ruled in McClesky v. Kemp that racial dispari-
ties in capital sentences, while problematic, did not constitute a violation
of “equal protection of the law.” In Atkins v. Virginia (2002), the Court
8 Corrections

overturned the use of capital punishment for mentally challenged offenders.

Roper v. Simmons (2005) overturned the practice of executing those who
had committed crimes as minors. In 2008, the Supreme Court upheld the
use of lethal injection in Baze v. Rees, and ruled in Kennedy v. Louisiana to
restrict the use of the death penalty to crimes resulting in the death of the
victim, treason, or espionage.
The current composition of the Supreme Court suggests that capital pun-
ishment will not face any serious challenges to its overall constitutionality
in the near future. Politically, the federal government is probably even less
likely to propose legislation to prohibit its use, and the last major presi-
dential candidate to oppose its use, Michael Dukakis in 1988, was roundly
derided as being soft on crime, a perception that most believe cost him the
election. On the state level, however, several states have recently proposed
legislation barring the use of capital punishment, and in 2009, New Mexico
banned its use in all future cases. As of 2010, 15 states had laws barring the
use of capital punishment.
The most common method of execution in the United States is lethal in-
jection, with 36 states and the federal government allowing for its use. Nine
states allow for electrocution, five allow for the gas chamber, two for hang-
ing, and one state (Utah) still allows for the use of the firing squad. Since the
reintroduction of capital punishment in 1976, lethal injection has been used
in approximately 85 percent of the total executions.

Pro: Arguments in Favor of Capital Punishment

The two primary arguments most commonly put forth by proponents of
capital punishment are that such punishments are effective in deterring
crime and saving lives; and that such punishments are necessary for achiev-
ing and maintaining justice for victims, as well as more generally for society
itself.

The Deterrence Effect

Deterrence arguments are based on the premise that the use of capital
punishment reduces rates of serious violent crimes, particularly homicides.
Within modern legal theory, deterrence is one of the four primary justifica-
tions for the depravation of liberty (the other three being incapacitation, re-
habilitation, and retribution). Theories of the use of punishment as a means
of deterrence are nominally divided into categories of general and specific
 Capital Punishment/Death Penalty 9

deterrence. The concept of general deterrence centers on the idea that the
punishment of one person encourages other people to act in law-abiding
ways, or at the very least induces them to commit lesser crimes in the fur-
therance of their criminal activities. The argument of specific deterrence, on
the other hand, centers on the idea that punishment of an individual will
discourage them from committing further criminal acts. Support for capital
punishment takes the form of general deterrence insofar as the execution of
a specific offender can be understood not as deterrence, but as an incapaci-
tation of the offender by death.
The effectiveness of capital punishment in deterring others from commit-
ting similar crimes has remained one of the most enduring justifications for
the continued support of its use in the United States, both by policymakers
and the public. Public opinion polling data shows that until the end of the
1980s, deterrence was the most frequently cited reason for why Americans
supported its use, and since the 1990s, it has remained the second most-
popular reason, behind retribution. This has also been reflected in national
politics, where no winning presidential candidate has opposed capital pun-
ishment since Jimmy Carter, and virtually all of them have cited its deterrent
effect as a primary reason for doing so.
Yet research on the ability of capital punishment to save the lives of oth-
ers did not concur with public opinion throughout the middle of the 20th
century. Thorsten Sellin’s major study of capital punishment in 1959 found
no deterrent effect, and later studies even suggested a negative correlation
between deterrence and capital punishment in the “brutalization effect.” In
1975, however, Isaac Ehrlich published a seminal study using multivariate
regression analysis that purported to find a small but statistically signifi-
cant negative correlation between capital punishment and homicides in the
United States between 1933 and 1969, concluding that on average, each
execution saved between six and seven lives.
The effect of Ehrlich’s research was profound in its effect on policymak-
ers, as well as on setting forth a program of research for further economet-
ric studies into the link between executions and deterrence. His findings,
though controversial, were nevertheless immediately popular among propo-
nents of capital punishment. Ehrlich’s work was cited in Gregg v. Georgia
(1976) as evidence of the “inconclusive” state of research on the question
of deterrence, but his assumption of murder as a more or less rational de-
cision was itself influential within the emerging rational-choice school of
thought in criminology that included notable criminologists such as James
Q. Wilson and Charles Murray. Wilson would become an advisor to Ron-
10 Corrections

ald Regan, and by the 1980s, the assumptions of rational-choice theories of

crime—including those of the deterrent effect of capital punishment—were
part and parcel of the policy movement away from rehabilitation toward
tough-on-crime policies, including the increase in many states of the use of
capital punishment.
Ehrlich’s work has been followed by a larger number of econometric
studies in the 1990s and 2000s that have used newer statistical methods
such as panel data to support the relationship between capital punishment
and deterrence. Research from Hashem Dezhbakhsh, Paul Rubin, and Joan-
na Shepherd in 2003 utilized county-level data (seen as more accurately able
to reflect relationships between executions and homicide rates than state or
national-level data) and concluded that on average, executions saved about
18 lives in terms of reduced homicides. Other studies have found similarly
significant negative correlations between executions and homicides, and
within the last decade in particular, there have been over a dozen major
peer-reviewed studies that have published similar findings.

A Deserved Punishment
Yet, the idea that capital punishment saves lives is not the only primary
justification for its continued use within the United States. Perhaps ironi-
cally, as Ehrlich and other econometricians were building a case for its
deterrent effect, the 1980s also saw an important shift in why Americans
supported this type of punishment. Beginning in 1990, Americans who
supported capital punishment increasingly did so because they believed
it was deserved, regardless of whether or not it had a deterrent effect on
others.
The idea that some people deserve to die is rooted in the legal premise
of retribution. Retribution has roots in the lex talionis (“law of the same
kind” or “measure for measure”) of the Judeo-Christian and Near East re-
ligions, in the moral philosophies of Hegel and Kant, and more recently in
the contemporary work of Andrew von Hirsch and John Rawls. The word
itself stems from the Latin retribuere, meaning “to hand back” or “to rec-
ompense,” and within retributive theories of justice it is argued that crime
causes harms to victims and to society that result in an imbalance of justice.
The point of retribution, argue supporters, is thus not revenge, but rather
a return of the net balance of justice that has been upended through crime.
Thus, even where many people who support capital punishment do so for
reasons of both retribution and deterrence, theoretically, they are dissimilar.
 Capital Punishment/Death Penalty 11

The concept of retribution contrasts starkly to that of deterrence insofar as

the former focuses on what has already happened, while the later is premised
on what may come in the future. Retribution, and in particular modern forms
of just-deserts theories, argue that punishment is only justified for the rea-
son of restoring this net balance, and as such, must be applied only to guilty
people in a manner proportional to the offense. Application of punishment
for other reasons, in particular for utilitarian reasons of crime prevention or
social welfare, violates the net balance of justice insofar as it may apply either
less or more punishment that is recompense for the offense.
The work of Andrew von Hirsch in particular has been instrumental in
the resurgence of the idea that punishment is only justified as a result of
one’s just deserts—namely, under conditions where guilt has been estab-
lished, and where the punishment corresponds to the level of harms caused
to victims. In this regard, the use of capital punishment is seen as not only
ethically permissible, but necessary, insofar as the net imbalance caused by
the taking of a life cannot be returned by life imprisonment or other less
equal punishments. In this regard, argue proponents, the question of wheth-
er or not capital punishment deters future offenders is immaterial; and on
the grounds of deterrence alone, it cannot be justified.

Con: Arguments in Opposition to Capital Punishment

Opponents of capital punishment argue that there is little evidence to sup-
port a deterrent effect, and that any net balance that may be theoretically
achieved through its use is offset by a variety of ethical and practical prob-
lems. Opponents also argue that capital punishment disproportionally tar-
gets minorities (particularly African Americans), and on average costs more
than life imprisonment.

Lack of Proof of Deterrent Effect

In response to the argument that capital punishment deters crime, oppo-
nents point to a substantial body of research that suggests otherwise. Prior
to Ehrlich’s work and the subsequent application of econometric methods to
the question of deterrence, few criminologists believed that there was strong
evidence to support this argument. Recent surveys of criminologists have
found that they still overwhelmingly believe that capital punishment does
not deter crime; in 2009, a study of leading American criminologists found
that 88 percent thought the death penalty was not a deterrent.
12 Corrections

Critics point out that a large number of studies on the topic have found
no deterrent effect, and that the attitudes of criminologists reflect this evi-
dence. Sellin’s work on the deterrent effect in 1959 was one of the first pri-
mary studies that compared states with similar populations and crime rates,
and found that those with the death penalty had, on average, no significant
decreases in homicide rates. This work was followed by dozens of published
studies that compared states with or without the death penalty, and notably
after 1972, compared homicide rates before and after the halting of execu-
tions within specific states, and concluded there was little deterrent effect.
Beginning in the 1970s, there has also been a substantial body of work
that has focused more extensively on rebutting the methodologies and find-
ings of Ehrlich and later econometricians. In response to Ehrlich’s findings,
the National Academy of Sciences appointed a panel of experts to review
his work and concluded in 1978 that his methodology was flawed, and his
conclusions were not sustainable. Critics have pointed out that his findings
were largely dependent upon the specific variables he chose to include in his
studies, as well as the specific time frames he focused on, and even minor
changes to these inputs and parameters have resulted in radically different
outcomes. More recently, the work of Jeffery Fagan and several colleagues
has demonstrated that the use of econometric methods by researchers who
have found a link between executions and deterrence are equally susceptible
to large variances through small changes to variables or time frames.
Aside from the argument that capital punishment does not deter crime,
critics also argue that the death penalty does not in fact result in increased
justice for either victims or society. Many critics are opposed to the idea of
retribution on moral or religious grounds, and argue that for a variety of rea-
sons, the death penalty constitutes a violation of the Eighth Amendment’s ban
on cruel and unusual punishment. Another common argument against the use
of capital punishment as a morally or socially necessary form of recompense
is the fact that for centuries, modern Western societies have substituted other
forms of punishment in lieu of the specific types of offenses committed by
criminals. When a person is found guilty of rape, they are not raped in return.
Nor do arsonists have their houses burned down. In this sense, critics see
capital punishment as nothing more than a thinly veiled form of vengeance.

Wrongful Convictions and Social Inequality

To the degree that retributive theories of justice demand that the guilty,
and only the guilty, be punished, critics also point to numerous cases where
 Capital Punishment/Death Penalty 13

those on death row have been exonerated, or in a smaller number of cases,

found innocent after they have been executed. Since the reinstatement of
the death penalty, over 100 people have been exonerated from death row in
the United States, and at least 10 have been found to be innocent after they
were executed. Concerns over the execution of the innocent were central
to the decision of Illinois Governor George Ryan to commute 156 capital
sentences in 2003, calling the death penalty system in that state “arbitrary
and capricious.” Here, critics frequently point to judge William Blackstone’s
famous dictum in the late 18th century that it is “better that 10 guilty per-
sons escape than that one innocent suffer.”
The argument that capital punishment disproportionally targets minori-
ties, and in particular African Americans, is most immediately related to so-
cial inequality in the United States, but as many legal theorists have argued,
it also intersects with retributive theories to the degree that they assume a
requisite net balance of justice. Critics point out that since the reinstatement
of the death penalty, 35 percent of those executed have been black, within
a general African American population of about 13 percent in the United
States. Moreover, since 1976, data on interracial homicides suggests that
blacks who kill whites have received the death penalty on average 15 times
for every time a white person has killed a black person. Moreover, crit-
ics point to the concentration of executions in U.S. states since 1976, with
approximately 80 percent of all executions occurring in the south. In this
respect, data on the disproportional use of capital punishment on black and
other minorities, particularly when the race of victims is taken into account,
demonstrate a continuance of a two-tiered system of justice that critics ar-
gue stretches back to slavery. Such a two-tiered system not only impugns
the legitimacy of the death penalty, but more broadly the concept of a net
balance of justice itself.
Finally, critics argue that capital punishment is, contrary to popular be-
lief, more expensive that life imprisonment. They point to numerous studies
on individual states such as California, Indiana, and North Carolina, as well
as comparative studies, which have found that on average, the costs of ini-
tial capital trials, lengthy periods of incarceration on death row, mandatory
appeals, and the execution itself generally exceed those of life incarceration.
Such monies, argue critics, could be better spent on furthering the reduction
of crime through increased law enforcement or other proven avenues of
reduction.

™
 14 Corrections

See Also: 2. Clemency; 3. Cruel and Unusual Punishment; 11. Life

Sentence; 12. Mentally Ill and Mentally Challenged Inmates.

Further Readings
Bedau, Adam Hugo, and Paul G. Cassell. Debating the Death Penalty:
Should America Have Capital Punishment? The Experts on Both Sides
Make Their Best Case. New York: Oxford University Press, 2004.
Ehrlich, Isaac. “The Deterrent Effect of Capital Punishment: A Question of
Life and Death.” The American Economic Review, v.65 (1975).
Hood, Dennis. The Death Penalty: A Worldwide Perspective, Third
Edition. New York: Oxford University Press, 2002.
Sarat, Austin. When the State Kills: Capital Punishment and the American
Condition. Princeton, NJ: Princeton University Press, 2002.
Steiker, Carol. “Capital Punishment and American Exceptionalism.”
Oregon Law Review, v.81 (2004).
Zimring, Franklin E. The Contradictions of American Capital Punishment.
New York: Oxford University Press, 2003.

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