The Deterrent Effect of the Death Penalty: A Statistical Test
![handle is hein.journals/stflr28 and id is 77 raw text is: The Deterrent Effect of the Death Penalty:
A Statistical Test*
Peter Passelt
Any number of arguments may be brought to bear on the issue of capital
punishment. One might, of course, oppose or favor the use of the death
penalty on moral considerations alone. Equally reasonably, one's opinion
might be shaped by how fairly the punishment is administered in practice;
the penalty may be applied selectively' or reserved for a narrow range of
crimes that resist precise legal definition For many people such arguments
alone are not likely to be persuasive. Execution may be commonly viewed
as a distasteful alternative to other forms of punishment, but an alternative
that could be defended on pragmatic grounds, if the gains in crime pre-
vention are sufficiently great. Thus, informed public opinion might in theory
be strongly influenced by evidence of capital punishment's capacity to deter
murder and other crimes. If the death penalty were shown conclusively to
deter violent crime, many people with moral or legal reservations would
accept the costs of the deterrent to obtain its benefits.
The deterrent effect of the death penalty is of particular interest today
because courts and legislatures are in the process of redefining the circum-
stances under which convicted felons may be executed.' While the legal
status of the death penalty could be determined by arguments unrelated to
* The author is extremely grateful for the assistance of Lee Friedman, David Kennett, and John
Taylor in the preparation of this Artide.
- B.A. 1966, Swarthmore College; Ph.D. 1970, Yale University; Assistant Professor of Economics,
Columbia University.
i. Indeed, the possibility of selective application was the rationale of Furman v. Georgia, 408
U.S. 238 (972): [W]e know that the discretion of judges and juries in imposing the death
penalty enables the penalty to be selectively applied.... Id. at 255. [T]hese discretionary statutes
are unconstitutional in their operation. They are pregnant with discrimination and discrimination
is an ingredient not compatible with the idea of equal protection of the laws that is implicit in the
ban on 'cruel and unusual' punishments. Id. at 256--57.
2. See C. BLACK, CAPrrAL PuussmiaNT'r: THE INEvrrAmLrry oF CAPRIc am Misraxa 19 (1974)
(vagueness of standards defining homicide).
3. Since the holding of Furman that statutes allowing discretionary application of the death
penalty are unconstitutional, see note i supra, the state legislative response has been to enact statutes
mandatorily imposing the death penalty for conviction of certain crimes. Thirty states have enacted
such statutes, see Brief for Petitioner at Appendix A, Fowler v. North Carolina, No. 73-7031 (Oct.
Term 1974).
The current death penalty litigation centers on Fowler, a convicted murderer's challenge to the
North Carolina death penalty statute. The basis of the challenge is that given Furman's proscription
of discretionarily applied statutes, statutes enumerating crimes for which the death penalty is mandatory
are nonetheless infirm because they do not eliminate the discretion inherent in arrest and prosecution,
which in large measure determines the crime for which one is convicted and thus in turn whether the
sanction of death will be imposed. See Brief of Petitioner, supra at i6--oi. Argument was heard on
April 21, 1975, but a decision was postponed and reargument was scheduled, - U.S. -, 95 S. Ct.
2652 (1975).](ViewImageLocal?handle=hein.journals/stflr28&div=12&collection=journals&method=preview&ext=.png&size=3)
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The Deterrent Effect of the Death Penalty: A Statistical Test
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