Nethmi Nawarathna | 9 October 2024

Vigorous debate between abolitionists and retentionists has centred around the efficacy and morality of capital punishment. Proponents for the death penalty, attempting to justify its imposition, suggest that the death penalty serves as a protective mechanism, deterring future offenders and yielding an aggregate benefit where more lives are saved than lost. However, whom the death penalty protects is unclear. The statement that the “death penalty protects no-one” cannot be refuted, as the current body of research remains inconsistent and inconclusive on its deterrent effect. Staunch retentionists continue to exhibit conformational bias, selectively engaging studies proposing a marginal deterrent effect to neutralise moral reservations whilst dismissing broader criticisms. Regardless, from an empirical standpoint, no conclusive evidence exists to suggest that the death penalty effectively prevents crime. On the contrary, some research indicates that the severe punishment may inure society, precipitating a trend of brutalisation where individuals are endangered rather than protected.

The erroneous and discriminatory nature of the death penalty in its application further undermines its justification. The inevitability of wrongful convictions, and disproportionate impact of the death penalty on marginalised groups, reduces the state to an arbitrary executor. Thus, a malleable system sensitive to revisions in empirical research and scientific developments is compelling. Given its severe and irreversible nature, the death penalty has no place in any criminal legal framework. Capital punishment ultimately fails to provide the protection and justice it purports to uphold.

Deterrence

It has been suggested that a state that is implicated in taking lives without a measurable return ‘loses their moral grounding’.One justification for the death penalty, therefore, hinges on its effectiveness in protecting the public. This protection may be realised if the threat of execution deters potential offenders, thus safeguarding the wellbeing and interests—and potentially even lives—of potential victims. The critical question then is the extent to which the death penalty serves as a marginal deterrent, compared to alternative sentences. To answer this, we must turn to the body of empirical research.

I.  The rational murderer

In 1972, the United States established a moratorium on executions following the Supreme Court ruling in Furman v Georgia,that the application of the death penalty was ‘cruel and unusual punishment’ in violation of the Eighth Amendment.However, this decision was overturned just four years later in Gregg v Georgia,where the Court ruled that not all applications of the death penalty are unconstitutional.The court's judgement included the reasoning that capital punishment “deterred” crime.Consequently, states were allowed to lift the moratorium and revise their capital punishment laws, leading to natural variation across jurisdictions. Differing adoptions of capital punishment provided an advantageous background for empirical research regarding the potential deterrence effect of capital punishment. Thus, Isaac Ehrlich’s ‘natural experiment’ was born.

Ehrlich created the first multivariate regression analysis to measure the impact of executions on homicide rates.The method was revolutionary, allowing for the separate consideration of different deterrent variables, such as the probability of arrest, conviction and execution, alongside differing demographic and economic variables.His model proposed that the average murder engages a ‘cost benefit’ analysis, rationalising the benefits of their actions alongside the different deterrents. A simple conclusion was reached: one execution can deter up to eight ‘murders’.

Unsurprisingly, Ehrlich's research has faced significant criticism. Academics suggest it is inconceivable that a rational actor possesses a ‘risk-reward’ criminal calculus, such that they would forgo committing homicide as the cost of execution exceeds any benefits of committing the crime.Ehrlich fails to consider that such homicides are often crimes of emotion or passion, not calculated deliberations.Furthermore, there is an unlikely assumption that offenders' perceptions of risk are sufficiently calibrated to the certain likelihood of execution. In reality, offenders are likely to undertake a subjective analysis, holding greater weight to perceived benefits and underestimating risks of apprehension and execution.

Subsequent panel-data analysis studies, accounting for limitations in previous time-series and cross-sectional data analysis, have produced conflicting results. Some researchers such as Dezhbakhsh, Rubin, and Shepherd continue to observe robust deterrence effects;others suggest a minimal effect (see Mocan and Gittings).Contrastingly, some academics, including Kovandzic, Vieraitis, and Boots have found no deterrence effect.

Ultimately, the body of research remains limited on the effectiveness of capital punishment as a deterrent, as no ethically defensible method to conduct randomised experiments exists.It is likely that the findings to arise from continued studies will contraindicate each other, and ‘as a whole, [be] uninformative’. The National Research Council’s in 1978 not only concluded that the results earlier studies such as Ehrlich’s are so temporarily unstable ‘that they provide no useful insight on the deterrence effect..’,but more recently in 2012, reiterated that ‘deterrence studies…should not influence policy judgments about capital punishment’.As international discussion surrounding abolition increasingly embraces human rights perspectives, the lack of consensus regarding the death penalty’s protective function is a notable argument for abolition.

II. Deterring drug offenders

Various studies also attempt to investigate any deterrence effect of the death penalty for capital drug offences. However, these studies not only face similar limitations as discussed, but are further complicated by the inability to reliably ascertain the number of perpetrators of drug trafficking and ‘invisible victims’ that may arise.Regardless, the deterrence argument is further disproven through an evaluation of market dynamics.

Economic theories proposing that market parameters would be sensitive to harsher punishment have not been substantiated. Theoretically, the threat of execution would be accompanied by a decrease in drug availability and an increase in drug value. Less individuals would offend upon undertaking a reward risk analysis, and this greater risk would be offset by increasing drug prices. In reality, no statistics demonstrate an increase in drug prices in retentionist countries that execute.

Retentionist states may instead inadvertently fuel the lucrative black market. Where the drug market is tightly embeddedwithin a nations’ economic framework, an executed or risk averse drug trafficker is quickly replaced by another, with a larger risk tolerance.Furthermore, offenders are likely to be ‘innocent carriers’, taken advantage of due to their intersecting vulnerability and therefore unlikely to be deterred. The composition of drug offenders on death row in Malaysia, which showcases an overrepresentation of ethnic minorities, women, and individuals from lower socio-economic backgrounds or with intellectual disabilities, substantiates this claim.Overall, no empirical support for the death penalty's deterrent effect on drug crime exists, casting doubt on retentionist nation’s claims that capital punishment serves to protect society and uphold conformity.

III. Taking psychological ownership

Despite this evidence, retentionist nations like Singapore argue that the death penalty is essential to prevent the erosion of political and judicial legitimacy.Tracing back to British Colonialism and the need to resist the strong drug influence of the proximate Golden Triangle,Singapore has maintained the death penalty as a part of its strict, ‘anti-drug’ national rhetoric.The government has garnered majority public support for their regime by penal populism, leveraging Asian communitarian values (compared to the individualistic, drug tolerant Western nations) and a ‘victim-centric’ narrative that the government is fulfilling their moral duty to protect society from drug-related crime.

However, as discussed, who the death penalty protects remains unclear, particularly where it may precipitate a more dangerous and lucrative drug market. It is clear that the public’s stance is based on the government's fear mongering and use of the death penalty as an instrument for social control. The idea that retentionists are largely misinformed in presuming the death penalty has a deterrent effect can be traced back to Furman v Georgia.Justice Marshall formed a theory (termed ‘Marshall’s hypothesis’), which postulated that public knowledge regarding the death penalty is scarce and increased access to information about the death penalty reduces support for it.

Academics such as Sato and Bacon echo this sentiment, proposing that the public must take greater psychological ownership regarding the future of the death penalty.Retentionists remain largely ignorant of the many compounding factors that influence the application of the death penalty, such as the lack of a deterrence effect, discriminatory nature of the criminal justice system, and possibility of wrongful executions.If individuals interrogated their beliefs and the evidence underpinning them, it is likely that such beliefs would be denigrated.

IV. Moving forward

With no sufficient evidence to conclude a deterrence effect, alternative measures for societal protection must be considered. Research suggests that non-capital, 'tough on crime' approaches can effectively prevent some forms of violence.The imposition of longer prison sentences has a greater propensity to invoke an offender's risk-reward analysis than the death penalty.Studies from Singapore,Trinidad and Tobago,Japan,and the USall indicate that due to the lack of marginal deterrence, life imprisonment without parole can serve a similar function to the death penalty in maintaining national legitimacy. Imprisonment acts as a general deterrent, whilst restricting the offender's liberty to offend in future. Furthermore, it is observed that retentionist attitudes are not as central to the public’s trust in the justice system as contended. Even a retentionist majority’s opinions are sufficiently flexible to accept abolition as legitimate, if it were the government's stance.

Governments must promote candid discussion about the death penalty to facilitate reform.Furthermore, focusing on macroeconomic policies to address underlying determinants of crime is key. Political legitimacy is maintainable, not just through greater enforcement efforts, but by addressing factors such as lack of education, poverty and unemployment.Ehrlich's research confirmed that addressing the latter played the same ascertainable role that increasing executions did.States should refrain from taking the easier, ineffective view promoting capital punishment, and instead effectively protect society by addressing the reasons individuals engage in criminal behaviour.

A fallible system

I. Wrongful convictions

Wrongful convictions are central to the debate surrounding the death penalty. Specifically in the United States, increasingexonerations in capital cases have intensified calls for abolition. However, this trend is not isolated to the United States or Western nations alone. For instance, surveys conducted of the Japanese public in 1967 found that “miscarriages of justice" ranked the lowest among arguments for abolishing the death penalty in Japan. Yet by 2014, it was considered the most persuasive argument for abolition.This shift depicts a broader international consensus that capital trials must be conducted with impeccable fairness to justify execution.

The United Nations has consistently attempted to set a standard of fair trials to mitigate this risk. Article 6 of the International Covenant on Civil and Political Rights explicitly sets out safeguards and restrictions on the death penalty to be applied by retentionist nations.Article 14 outlines the relevant ‘standards’ for ensuring a fair trial, encompassing the right to a hearing by an independent tribunal, the presumption of innocence, the minimum guarantees for the defence, and the right to review by a higher tribunal.In 2014, the UN Economic and Social Council adopted the ‘Safeguards Guaranteeing Protection of the Rights of Those Facing the Death Penalty’, which has been frequently cited in subsequent resolutions.

Despite these international standards, many countries have struggled to meet them.In the Philippines, for example, the judicial error rate for death penalty cases exceeded 70%, from 1993 to 2004.This inadequacy is not just limited to poorer nations that lack financial resources to implement adequate safeguards; even wealthier nations cannot guarantee absolute accuracy in their judicial processes.Therefore, the ‘protection’ afforded by the death penalty is further impugned.

Furthermore, advancements in scientific methods have elucidated the potential for wrongful convictions. Modern techniques have led to the exoneration of individuals who were previously sentenced to death. Notably, Iwao Hakamada, the longest-serving death row inmate in Japan, was exonerated upon newfound DNA evidence proving his innocence.The Innocence Project concluded that amongst the first 300 exonerations in the US, 18 were death row inmates later proven innocent through new evidence.Scientific development will likely remain a perennial feature of modernisation. This underscores the need for the criminal justice system to avoid over-reliance on current scientific methods and remain adaptable to new evidence proving innocence.

Given the possibility of errors in conviction, the irreversible consequences of imposing the death penalty are particularly problematic. Ultimately, there is no ‘protection’ garnered from subjecting an innocent individual to death. The risk of executing the innocent is not a ‘necessary evil’, as consequentialists may suggest, but a fundamental flaw undermining the very purpose of ‘protection’ that the death penalty purports to serve.

II. Discrimination

Human rights experts caution the use of the death penalty, equating it to a form of ‘class based discrimination’.The disproportionate representation of individuals from lower socio-economic backgrounds on death row is evident and reflects systemic flaws within the criminal justice system. Those in poverty are often easy targets for law enforcement, lack access to adequate legal representation, or face significant barriers in accessing appeals.

There is perhaps no greater indictment for the death penalty than the fact that in its application, it is reserved for the vulnerable. Stephen Bright outlines that ‘virtually all those executed are poor, about half are members of racial minorities….[and] many suffer from mental illness or possess an intellectual disability.Per an intersectional consideration, poverty compounds the obstacles already faced by marginalised genders, racial and ethnic groups.Research in China reveals that 70% of the population believed the death penalty was not ‘equitably administered, being more likely to be imposed on the poor or powerless rather than the rich and powerful’.In the United States, capital punishment serves as a vestige of slavery, and mirrors the institutional racism entrenched in the justice system, with African Americans being disproportionately represented on death row and more likely to receive the death penalty.Where disadvantaged individuals are sacrificed at the altar of justice, capital punishment cannot be stated to equally protect everyone.

III.  Brutalisation

It is proposed that the death penalty operates as a form of retributive justice, punishing offenders in a manner that encapsulates the severity of the harm they have imposed. Per this view, capital punishment is likened to a controlled means of retribution, mitigating arbitrary extrajudicial killings that may arise from communities, fuelled by vengeance. However, in practicality, the opposite may be true.

Rather than protecting the public, the death penalty might actually exacerbate violence.Where the state sanctions death as punishment, citizens become desensitised to violence, leading to extra-judicial killing. Historical examples illustrate this point. England’s ‘Bloody Code’, referring to the expansion of 18th century legislation to create over 200 capitol statutes, was criticised for its brutalising impact.This legislation, resulting in executions being imposed for virtually all felonies, led to the state arbitrarily applying the death penalty. Mass public executions, combined with the state’s inconsistent application of the law, lead to increased violence. This was only tempered upon the advent of alternative, graded punishments, and the ultimate dismantling of the Bloody Code in 1814, such that only murder and treason were the remaining capital offences.

Contemporary research supports the notion that increased execution rates may correlate with higher homicide rates.In the examination of US counties that executed from 1977-1996, only 6 showcased a deterrence effect, whilst 13 indicated a brutalisation effect.Although such evidence does not conclusively determine whether capital punishment deters or induces crime, it does present a salient argument towards abolition.Ultimately, the research demurs any propositions that capital punishment is necessary to mitigate extrajudicial killing and protect society.

Conclusion

Retentionist states that continually execute, in spite of lacking empirical evidence regarding its deterrent effect, cannot purport to be moral actors or harbingers of protection. At best, they are implicated in extinguishing human life solely for political power and societal subordinance. At worst, they expose innocent individuals to a fallible and biased system, subjecting them to an irreversible fate. A focus on alternative punishments and crime prevention should be prioritised, as the extent to which the death penalty protects society remains elusive.

Nethmi Nawarathna is a student at Monash University. This paper was originally submitted as part of Monash Law undergraduate unit, "The death penalty: Law, politics and advocacy" (LAW4543) and has been reproduced here with the author's permission. The topic "The death penalty protects no one" was chosen to encourage reflection on the theme of World Day Against The Death Penalty 2024.