Capital punishment, accompanied by torture, is widely applied and taken for granted in most pre-industrial societies, past and present (see, e.g. Diamond 1971). In modern industrial societies there has been a tendency towards decreasing severity of criminal punishments, and, especially, towards decreasing use of the death penalty (Gorecki 1983). This pattern has been particularly marked in European history, although the total abolition of capital punishment became a publicly articulated demand only after the Enlightenment. Most liberal democracies do not now have the death penalty, but many authoritarian societies readily apply capital punishment.
Among the democracies, the USA is the most conspicuous exception. Following a protracted struggle, the American abolitionists resorted, in the 1960s, to judicial review: they petitioned Federal courts rather than lawmakers to ban the penalty on the ground of the constitutional prohibition of ‘cruel and unusual punishments’. Abolitionist scholars supplied the Supreme Court with relevant sociolegal empirical data which some Justices cited in their opinions. However, the abolitionists lost the struggle in the wake of a crucial Supreme Court decision of 1976; following that decision, the majority of the states in the USA continue to punish the most abominable cases of murder by death. This development was precipitated by the increasing public anger against high rates of violent crime in the USA.
The arguments of both abolitionists and retentionists are many and hotly debated. The most forcefully stressed retentionist plea is utilitarian (or, strictly speaking, teleological): capital punishment is claimed to deter wrongdoing even better than lifelong confinement. There are further utilitarian contentions as well: that capital punishment constitutes the only secure incapacitation, and that it increases respect for criminal law. Non-utilitarian retentionists believe in the ultimate retributive value of capital punishment as the only ‘just desert’ for the most abhorrent crimes. In rejoinder, the abolitionists question the superior deterrent value of the death penalty. Furthermore, they stress the sanctity of human life and immorality of the state killing anyone. They argue that the penalty brutalizes society, and endangers the innocent, because judicial errors do occur. Moreover, they claim that the penalty is arbitrarily imposed, and often tainted by prejudice, especially if the perpetrator is black and the victim white (Baldus et al. 1990). They also feel that the suffering of convicts who are led to execution and of those who wait on death row is appalling. Believers in the re-education of wrongdoers rather than in retribution as the basic goal of criminal justice complain that execution not only is vindictive but also precludes rehabilitation.
The logical status and empirical validity of these arguments vary The non-utilitarian arguments constitute moral axioms, like any ultimate ethical norms. The utilitarian arguments are questionable on purely empirical grounds. This is particularly true of the deterrence idea, which has stimulated a wealth of statistical inquiries. Despite their increasing refinement—especially by Ehrlich (1975) and his opponents—the enquiries have been inconclusive; we do not know and may never learn whether capital punishment deters most effectively. But while the impact of the death penalty on the functioning of criminal justice remains unproved and uncertain, the question as to whether we send criminals to their death presents a moral dilemma of utmost importance. That is why interest in the issue remains intense, particularly in the USA.
Since the defeat of the abolitionists in 1976, the US crime rates have risen dramatically. This generated such continuing growth of punitive attitudes that politicians hardly dare to appear ‘soft on crime’, and often use (and abuse) advocacy of the gallows for political purposes. Since the 1980s, the consistently retentionist Supreme Court stopped utilizing sociolegal empirical studies, which were designed to test the factual assertions underlying the normative views of individual Justices (Acker 1993; Ellsworth 1988; Zimring 1993). In this climate the abolitionists, active and influential in the late 1970s, have lost most of their clout.
Will the USA join the abolitionist club of the most advanced societies? This will probably happen if and when violent crime is brought under control by a conjunction of new social and legal policies. This would have to include the implementation of a viable family and educational policy, guaranteeing adequate upbringing and training for all of America’s children and adolescents, and, on the legal front, an over-haul of the criminal justice system. With crime under control, and the pervasive anger and fear of crime disappearing, the tendency towards declining harshness of criminal punishments cannot but start working again, and the day of the abolitionists will probably come. But, for constitutional reasons, it should come through legislative process rather than the action of the Supreme Court. Since legislatures constitute an audience obviously more open to scholarly expertise than the judicial branch, empirical data relevant to the struggle for and against abolition will once more be granted attention.
Jan Gorecki
University of Illinois
References
Acker, J.R. (1993) ‘A different agenda: the Supreme Court, empirical research evidence, and capital punishment’, Law and Society Review 27.
Baldus, D., Woodward, G. and Pulaski, C. Jr (1990) Equal Justice and Death Penalty: A Legal and Empirical Analysis, Boston, MA.
Diamond, A.S. (1971) Primitive Law Past and Present, London.
Ehrlich, I. (1975) ‘The deterrent effect of capital punishment: a question of life and death’, American Economic Review 65.
Ellsworth, P.C. (1988) ‘Unpleasant facts: the Supreme Court’s response to empirical research on capital punishment’, in K.C.Haas and J.A.Inciardi (eds) Challenging Capital Punishment: Legal and Social Science Approaches, Newbury Park, CA.
Gorecki, J. (1983) Capital Punishment: Criminal Law and Social Evolution, New York.
Zimring, F.E. (1993) ‘On the liberating virtues of irrelevance’, Law and Society Review 27.
