The death penalty not only does not deter violent crime, but actually works against reducing the crime rate, argues Eric M. Freedman in the following viewpoint. States that use the death penalty have crime rates that are nearly indistinguishable from those states that do not have the death penalty, he contends. Furthermore, criminal cases in which the death penalty is sought are much more expensive to investigate and try, he maintains, thus denying much-needed funds to programs that have been proven to reduce crime. Freedman teaches courses on constitutional law and the death penalty at Hofstra University School of Law in Hempstead, New York.

As you read, consider the following questions:

1. What evidence does the author present to support his contention that the death penalty does not deter crime?
2. According to Freedman, why are death penalty cases and trials so much more expensive than cases in which the punishment is life imprisonment?
3. In what way is the death penalty discriminatory, in Freedman's opinion?

On September 1, 1995, New York rejoined the ranks of states imposing capital punishment. Although the first death sentence has yet to be imposed, an overwhelming factual record from around the country makes the consequence of this action easily predictable: New Yorkers will get less crime control than they had before.

Anyone whose public policy goals are to provide a criminal justice system that delivers swift, accurate, and evenhanded results--and to reduce the number of crimes that actually threaten most people in their daily lives--should be a death penalty opponent. The reason is simple: The death penalty not only is useless in itself, but counterproductive to achieving those goals. It wastes enormous resources--fiscal and moral--on a tiny handful of cases, to the detriment of measures that might have a significant impact in improving public safety.

Not a Deterrent

Those who believe the death penalty somehow is an emotionally satisfying response to horrific crimes should ask themselves whether they wish to adhere to that initial reaction in light of the well-documented facts:

Fact: The death penalty does not reduce crime

Capital punishment proponents sometimes assert that it simply is logical to think that the death penalty is a deterrent. Whether or not the idea is logical, it is not true, an example of the reality that many intuitively obvious propositions--e.g., that a heavy ball will fall faster if dropped from the Leaning Tower of Pisa than a light one--are factually false.

People who commit capital murders generally do not engage in probability analysis concerning the likelihood of getting the death penalty if they are caught. They may be severely mentally disturbed people like Ted Bundy, who chose Florida for his final crimes because it had a death penalty.

Whether one chooses to obtain data from scholarly studies, the evidence of long-term experience, or accounts of knowledgeable individuals, he or she will search in vain for empirical support for the proposition that imposing the death penalty cuts the crime rate. Instead, that person will find:

• The question of the supposed deterrent effect of capital punishment is perhaps the single most studied issue in the social sciences. The results are as unanimous as scholarly studies can be in finding the death penalty not to be a deterrent.
• Eighteen of the 20 states with the highest murder rates have and use the death penalty. Of the nation's 20 big cities with the highest murder rates, 17 are in death penalty jurisdictions. Between 1975 and 1985, almost twice as many law enforcement officers were killed in death penalty states as in non-death penalty states. Over nearly two decades, the neighboring states of Michigan, with no death penalty, and Indiana, which regularly imposes death sentences and carries out executions, have had virtually indistinguishable homicide rates.
• Myron Love, the presiding judge in Harris County, Texas (which includes Houston), the county responsible for 10% of all executions in the entire country since 1976, admits that "We are not getting what I think we should be wanting and that is to deter crime.... In fact, the result is the opposite. We're having more violence, more crime."

An Expensive Punishment

Fact: The death penalty is extraordinarily expensive

Contrary to popular intuition, a system with a death penalty is vastly more expensive than one where the maximum penalty is keeping murderers in prison for life. A 1982 New York study estimated the death penalty cost conservatively at three times that of life imprisonment, the ratio that Texas (with a system that is on the brink of collapse due to underfunding) has experienced. In Florida, each execution runs the state $3,200,000--six times the expense of life imprisonment. California has succeeded in executing just two defendants (one a volunteer) since 1976, but could save about $90,000,000 per year by abolishing the death penalty and re-sentencing all of its Death Row inmates to life.

In response, it often is proposed to reduce the costs by eliminating "all those endless appeals in death penalty cases." This is not a new idea. In recent years, numerous efforts have been made on the state and Federal levels to do precisely that. Their failure reflects some simple truths:

• Most of the extra costs of the death penalty are incurred prior to and at trial, not in postconviction proceedings. Trials are far more likely under a death penalty system (since there is so little incentive to plea-bargain). They have two separate phases (unlike other trials) and typically are preceded by special motions and extra jury selection questioning--steps that, if not taken before trial, most likely will result in the eventual reversal of the conviction.
• Much more investigation usually is done in capital cases, particularly by the prosecution. In New York, for instance, the office of the State Attorney General (which generally does not participate in local criminal prosecutions) is creating a new multi-lawyer unit to provide support to county district attorneys in capital cases.
• These expenses are incurred even though the outcome of most such trials is a sentence other than death and even though up to 50% of the death verdicts that are returned are reversed on the constitutionally required first appeal. Thus, the taxpayers foot the bill for all the extra costs of capital pretrial and trial proceedings and then must pay either for incarcerating the prisoner for life or the expenses of a retrial, which itself often leads to a life sentence. In short, even if all postconviction proceedings following the first appeal were abolished, the death penalty system still would be more expensive than the alternative....

Other Programs Suffer

Fact: The death penalty actually reduces public safety

The costs of the death penalty go far beyond the tens of millions of dollars wasted in the pursuit of a chimera. The reality is that, in a time of fixed or declining budgets, those dollars are taken away from a range of programs that would be beneficial. For example:

• New York State, due to financial constraints, can not provide bulletproof vests for every peace officer--a project that, unlike the death penalty, certainly would save law enforcement lives.
• According to FBI statistics, the rate at which murders are solved has dropped to an all-time low. Yet, empirical studies consistently demonstrate that, as with other crimes, the murder rate decreases as the probability of detection increases. Putting money into investigative resources, rather than wasting it on the death penalty, could have a significant effect on crime.
• Despite the large percentage of ordinary street crimes that are narcotics-related, the states lack the funding to permit drug treatment on demand. The result is that people who are motivated to cure their own addictions are relegated to supporting themselves through crime, while the money that could fund treatment programs is poured down the death penalty drain.

Discrimination

Fact: The death penalty is arbitrary in operation

Any reasonably conscientious supporter of the death penalty surely would agree with the proposition that, before someone is executed by the state, he or she first should receive the benefits of a judicial process that is as fair as humanly possible.

However, the one thing that is clear about the death penalty system that actually exists--as opposed to the idealized one some capital punishment proponents assume to exist--is that it does not provide a level of fairness which comes even close to equaling the gravity of the irreversible sanction being imposed. This failure of the system to function even reasonably well when it should be performing excellently breeds public cynicism as to how satisfactorily the system runs in ordinary, non-capital cases.

That reaction, although destructive, is understandable, because the factors that are significant in determining whether or not a particular defendant receives a death sentence have nothing at all to do with the seriousness of his or her crime. The key variables, rather, are:

• Racial discrimination in death-sentencing, which has been documented repeatedly....

Many ... studies, whose validity have been confirmed in a major analysis for Congress by the General Accounting Office, ... uniformly have found that, even when all other factors are held constant, the races of the victim and defendant are critical variables in determining who is sentenced to death.

Thus, black citizens are the victim of double discrimination. From initial charging decisions to plea bargaining to jury sentencing, they are treated more harshly when they are defendants, but their lives are given less value when they are victims. Moreover, all-white or virtually all-white juries still are commonplace in many places.

One common reaction to this evidence is not to deny it, but to attempt to evade the facts by taking refuge in the assertion that any effective system for guarding against racial discrimination would mean the end of the death penalty. Such a statement is a powerful admission that governments are incapable of running racially neutral capital punishment systems. The response of any fair-minded person should be that, if such is the case, governments should not be running capital punishment systems.

• Income discrimination. Most capital defendants can not afford an attorney, so the court must appoint counsel. Every major study of this issue, including those of the Powell Commission appointed by Chief Justice William Rehnquist, the American Bar Association, the Association of the Bar of the City of New York, and innumerable scholarly journals, has found that the quality of defense representation in capital murder trials generally is far lower than in felony cases.

The field is a highly specialized one, and since the states have failed to pay the amounts necessary to attract competent counsel, there is an overwhelming record of poor people being subjected to convictions and death sentences that equally or more culpable--but more affluent--defendants would not have suffered.

• Mental disability. Jurors are more likely to sentence to death people who seem different from themselves than individuals who seem similar to themselves. That is the reality underlying the stark fact that those with mental disabilities are sentenced to death at a rate far higher than can be justified by any neutral explanation. This reflects prejudice, pure and simple.

Innocent People Are Executed

Fact: Capital punishment inevitably will be inflicted on the innocent

It is ironic that, just as New York was reinstating the death penalty, it was in the midst of a convulsive scandal involving the widespread fabrication of evidence by the New York State Police that had led to scores of people--including some innocent ones-- being convicted and sentenced to prison terms. Miscarriages of justice unquestionably will occur in any human system, but the death penalty presents two special problems in this regard:

• The arbitrary factors discussed above have an enormous negative impact on accuracy. In combination with the emotional atmosphere generally surrounding capital cases, they lead to a situation where the truth-finding process in capital cases is less reliable than in others. Indeed, a 1993 House of Representatives subcommittee report found 48 instances over the previous two decades in which innocent people had been sentenced to death.
• The stark reality is that death is final. A mistake can not be corrected if the defendant has been executed.

How often innocent people have been executed is difficult to quantify; once a defendant has been executed, few resources generally are devoted to the continued investigation of the case. Nonetheless, within the past few years, independent investigations by major news organizations have uncovered three cases, two in Florida and one in Mississippi, where people were put to death for crimes they did not commit. Over time, others doubtless will come to light (while still others will remain undiscovered), but it will be too late.

The fact that the system sometimes works--for those who are lucky enough to obtain somehow the legal and investigative resources or media attention necessary to vindicate their claims of innocence--does not mean that most innocent people on Death Row are equally fortunate. Moreover, many Death Row inmates who have been exonerated would have been executed if the legal system had moved more quickly....

The death penalty is not just useless--it is positively harmful and diverts resources from genuine crime control measures. Arbitrarily selecting out for execution not the worst criminals, but a racially determined handful of the poorest, most badly represented, least mentally healthy, and unluckiest defendants--some of whom are innocent--breeds cynicism about the entire criminal justice system.

Thus, the Criminal Justice Section of the New York State Bar Association--which includes prosecutors, judges, and defense attorneys--opposed re-institution of the death penalty because of "the enormous cost associated with such a measure, and the serious negative impact on the delivery of prosecution and defense services throughout the state that will result." Meanwhile, Chief Justice Dixon of the Louisiana Supreme Court put it starkly: "Capital punishment is destroying the system."

FURTHER READINGS

Books

• William J. Bennett, John J. DiIulio Jr., and John P. Walters. Body Count: Moral Poverty ... and How to Win America's War Against Crime and Drugs. New York: Simon & Schuster, 1996.
• William J. Bratton with Peter Knobler. Turnaround: How America's Top Cop Reversed the Crime Epidemic. New York: Random House, 1998.
• Steven R. Donziger, ed. The Real War on Crime: The Report of the National Criminal Justice Commission. New York: HarperPerennial, 1996.
• Mansfield B. Frazier. From Behind the Wall: Commentary on Crime, Punishment, and the Underclass by a Prison Inmate. New York: Paragon House, 1995.
• James Gilligan. Violence: Our Deadly Epidemic and Its Causes. New York: G.P. Putnam, 1996.
• Dennis A. Henigan, E. Bruce Nicholson, and David Hemenway. Guns and the Constitution: The Myth of Second Amendment Protection for Firearms in America. Northampton, MA: Alethia Press, 1995.
• Edward Humes. No Matter How Loud I Shout: A Year in the Life of Juvenile Court. New York: Simon & Schuster, 1996.
• Wendy Kaminer. It's All the Rage: Crime and Culture. Reading, MA: Addison-Wesley, 1995.
• Don B. Kates and Gary Kleck. The Great American Gun Debate: Essays on Firearms and Violence. San Francisco: Pacific Research Institute, 1997.
• George L. Kelling and Catherine M. Coles. Fixing Broken Windows: Restoring Order and Reducing Crime in Our Communities. New York: Martin Kessler Books, 1996.
• Randall Kennedy. Race, Crime, and the Law. New York: Pantheon, 1997.
• David J. Krajicek. Scooped! Media Miss Real Story on Crime While Chasing Sex, Sleaze, and Celebrities. New York: Columbia University Press, 1998.
• John R. Lott Jr. More Guns, Less Crime: Understanding Crime and Gun-Control Laws. Chicago: University of Chicago Press, 1998.
• Edwin Meese III and Robert E. Moffit, eds. Making America Safer: What Citizens and Their State and Local Officials Can Do to Combat Crime. Washington, DC: Heritage Foundation, 1997.
• Steven F. Messner and Richard Rosenfeld. Crime and the American Dream. Belmont, CA: Wadsworth Publishing, 1997.
• Katheryn K. Russell. The Color of Crime: Racial Hoaxes, White Fear, Black Protectionism, Police Harassment, and Other Macroaggressions. New York: New York University Press, 1998.
• Michael Tonry. Malign Neglect: Race, Crime, and Punishment in America. New York: Oxford University Press, 1996.
• Ved Varma, ed. Violence in Children and Adolescents. Bristol, PA: Jessica Kingsley Publishers, 1997.
• Willie L. Williams with Bruce B. Henderson. Taking Back Our Streets: Fighting Crime in America. New York: Scribner, 1996.
• James Q. Wilson and Joan Petersilia, eds. Crime. San Francisco: ICS Press, 1995.
• Franklin Zimring and Gordon Hawkins. Crime Is Not the Problem: Lethal Violence in America. New York: Oxford University Press, 1997.

Periodicals

• Walter Berns. "Crime in the Public Mind," Society, March/April 1997.
• Barry Lee Coyne. "For Those Who Cringe at Crime," Christian Social Action, December 1997. Available from 100 Maryland Ave. NE, Washington, DC 20002.
• John J. DiIulio Jr. "Arresting Ideas," Policy Review, Fall 1995.
• Craig Donegan. "Preventing Juvenile Crime," CQ Researcher, March 15, 1996. Available from 1414 22nd St. NW, Washington, DC 20037.
• David R. Francis. "Just Proven: Prisons Do Keep Down Crime," Christian Science Monitor, January 19, 1996.
• Bob Herbert. "The Keys to Cutting Crime," Liberal Opinion, October 13, 1997. Available from PO Box 880, Vinton, IA 52349-0880.
• Shari Huffman. "Taking Back Their Neighborhoods," Christian Social Action, May 1997.
• Mike Males and Faye Docuyanan. "Crackdown on Kids," Progressive, February 1996.
• Edmund F. McGarrell. "Cutting Crime Through Police-Citizen Cooperation," Outlook, Spring 1998. Available from 5395 Emerson Way, Indianapolis, IN 46226.
• Eugene H. Methvin. "Mugged by Reality," Policy Review, July/August 1997.
• George E. Pataki. "Death Penalty Is a Deterrent," USA Today, March 1997.
• Charley Reese. "Crime Problem Has Simple Solution," Conservative Chronicle, December 9, 1998. Available from PO Box 37077, Boone, IA 50037-0077.
• Robert Warburton. "'Lock' Em Up and Leave 'Em There!'" Christian Social Action, October 1997.
• Robert L. Woodson. "Reclaiming the Lives of Young People," USA Today, September 1997.