Is the Death Penalty a Deterrent?

The most common justification I hear for the death penalty is that it deters crime. When I consider the hundreds of death penalty cases with which I am familiar, and the dozen or so which I have worked on personally, I am always puzzled by this position. I ask myself, “Have the people that advocate this proposition taken a close look at death penalty defendants?”

Most death penalty defendants are guilty, and in my opinion, most defendants committed their crime as a result of three common factors. First, they are anti-social. In other words, they have an inability to relate normally to fellow human beings. They hold themselves in low regard and hold their fellow man in equally low regard. Second, they have low intelligence. Intelligent anti-social people engage in fraud or selfish business practices. Anti-social people of low intelligence rob a convenient store clerk for a $100 and then kill him unnecessarily because they give no value to his life. Third, the vast majority of death penalty defendants themselves have been the victims of horrendous human behavior in the form of parental abuse or something similar. This may have something to do with why the defendant is anti-social, and generally reinforces the idea in this low intellectually functioning individual that it is better to be the victimizer rather than the victim.

Given these commonalities, it is unlikely that any such individual will be deterred by the death penalty. First, they are simply to ignorant to be aware of such penalties. Second, until immediately confronted with their own death so that their instinctual will to live is invoked, they hold their own lives in low regard and think that the death penalty will be preferable to a lengthy prison sentence. Third, they usually commit their crimes in an angry state of passion, (often partially drug induced), and do not engage in any rational process when it would be necessary for them to do so in order for them to be deterred.

While it appears logical that the death penalty is not a good deterrent empirical evidence does not support the argument that the death penalty deters murder. In the United States there is no reduction in the murder rate of States which impose the death penalty in comparison to those States which do not. Some countries which impose the death penalty have low murder rates, but many countries which do not have even lower murder rates. Some argue that if the United States imposed the death penalty freely and often, for example, for every murder, then one would see a deterrent effect, but this is like arguing if “fishes were wishes.” The US Constitution, as interpreted, prevents the automatic imposition of the death penalty, and given the startling number of DNA exonerations, there is no real public support for thousands of executions annually.

Although deterrence is a weak argument in support of the death penalty, rational people can argue that the death penalty serves as a mechanism for the venting of the societal spleen. In other words, one can make a case that some crimes or so horrible that if the death penalty is not imposed societal frustration may build to such an extent that whatever evils may be associated with the death penalty are outweighed by the benefit of this venting. Although I disagree with this analysis, and believe that the imposition of the death penalty cheapens a society’s appreciation of the sacredness of life, I suggest this cost/benefit argument so that the overall issue may be discussed more intelligently.

Mick Mickelsen is a nationally recognized criminal trial attorney with more than 30 years of experience defending people charged with white-collar crimes, drug offenses, sex crimes, murder, and other serious state and federal offenses.