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Murder and the Death Penalty William C Journal of Criminal Law and Criminology Volume 65 | Issue 3 Article 8 1975 Murder and the Death Penalty William C. Bailey Follow this and additional works at: https://scholarlycommons.law.northwestern.edu/jclc Part of the Criminal Law Commons, Criminology Commons, and the Criminology and Criminal Justice Commons Recommended Citation William C. Bailey, Murder and the Death Penalty, 65 J. Crim. L. & Criminology 416 (1974) This Criminal Law is brought to you for free and open access by Northwestern University School of Law Scholarly Commons. It has been accepted for inclusion in Journal of Criminal Law and Criminology by an authorized editor of Northwestern University School of Law Scholarly Commons. THE jouR AL or Canm;AL LAw & CR=OLOGY Vol. 65, No. 3 Copyright © 1974 by Northwestern University School of Law Printed in U.S.A. RESEARCH NOTES MURDER AND THE DEATH PENALTY WILLIAM C. BAILEY* A survey of the literature on homicide and capi- methodological shortcomings.n Before examining tal punishment reveals that the past decade has these shortcomings and the scope of the present produced no new research on this question. Appar- investigations, it is necessary to review the avail- ently, the early investigations by Bye,' Suther- able evidence. land,'2 Kirkpatrick,8 and Void 4 and later examma- tions by Sellin, 5 Schuessler6 and Savitz7 have Previous Research convinced most students of homicide that the The conclusion that capital punishment has no ineffectiveness of the death penalty as a deterrent deterrent effect on murder stems primarily from to murder has been demonstrated conclusively.8 three types of investigations: (1) comparative Not all remain convinced, however, of the con- analyses of homicide rates for states which differ clusiveness of the evidence. In a recent examina- in provisions for the death penalty; (2) longitudinal 9 tion of the question, Bedau argues that most investigations of homicide rates for states before criminologists skeptical of capital punishment have and after the abolition and/or restoration of the not come to this conclusion by a critical examina- death penalty; and (3) longitudinal examinations tion of the evidence, but rather because of their of homicide rates immediately preceding and adherence to a general theory of violent crimes immediately following publicity of executions.u that excludes the influence of the threat of punish- The most common approach to testing the de- ment.' Furthermore, careful examination of the terrent effect of the death penalty has been a com- literature reveals the evidence usually cited as parison of homicide rates of abolitionist and reten- questioning the death penalty to be less than con- tionist states 3 These investigations have generally clusive. With few exceptions, these investigations shown homicide rates in the latter states to be suffer from a number of serious theoretical and two to three times that of the former 4 This find- * Department of Sociology, Cleveland State Uni- ing is contrary to what deterrence theory would versity. predict. Such comparisons have usually been de- IR. BYE, CAPITAL PUNISHMNT IN THE UNITED clared invalid, however, for the two groupings of STATES (1919). 2 Sutherland, Murder and the Death Penalty 15 j states are not uniform with respect to other possible Am. INST. ConmAL LAW & CRI [NoLoGY 522 (1925). important etiological factors-population com- 8C. KIREPATIICK, CAPITAL PUNISHMENT, COM- position, social structure and cultural patterns.15 MITTEE ON PnITh Ropic LABOR Or PHIADELPHIA YEARLY MEETING or FRIENns (1925). h E. SuTnERLAND & D. CREssEY, PRINcIPLEs or 4 Vold, Can the Death PenaltyPrevent Crime, 3 PRISON Cm NOLOGY (7th ed. 1970); F. ZUIRING & G. HAw- 8 (1932). EINS, DETERRENCE: LEGAL TAREAD I. 5 IN CRIME CONTROL T. SELLIN, CAPITAL PUNISHMENT (1967); Testi- (1973); Bedau, Deterrence and the Death Penalty: A mony of Thorsten Sellin before Royal Commission on Reconsideration, 61 J. Can. L.C. & P.S. 539 (1970); Capital Punishment, ROYAL COme'N ON CAPITAL Gibbs, supra note 8; Erickson & Gibbs, The Deterrence PuNIssmoET, CmD. No. 8932, at 17 (1955). [Hereinafter Question: Some Alternative Methods of Analysis (1972) cited as Sellin, ROYAL Comme'N]. (unpublished article). 6 Schuessler, The Deterrent Influence of the Death "Sellin's examinations of police safety and prison Penalty,7 284 ANNALS 54 (1952). homicides and the death penalty are also often cited in Savitz, A Study of Capital Punishment, 49 J. Cpm. discussions of capital punishment as a deterrent to L.C. & P.S. 338 (1958). homicide. SEU.m, CAPITAL PUNISRTA NT (1967); s Gibbs, Crime, Punishmentand Deterrence,48 SOUTH- SELLwN, ROYAL Coma'N, supra note 5. wEsTERN SocIAL SCrENCE Q. 294 (1965). "E. SuTnmRmLa- & D. CRnssEY, supra note 11. 9 Bedau, Deterrence and the Death Penalty: A Recon- 14Id. See also Schuessler, supra note 6; Sutherland, sideration,61 J. Cam. L.C. & P.S. 539 (1970). supra1 note 2. 10In addition, McClellan points out that much of the 6 Schuessler, supra note 6; Sutherland, supra note 2. evidence on the deterrence issue is questionable for it Schuessler points out that this criticism indirectly would appear to have been collected for the sole purpose affirms that the relative occurrence of murder is the of disproving the value claimed for punishment. G. result of a combination of social circumstances of which MCCLELLAN, CAPITAL PUNISHMENT (1961). punishment is only one. 19741 THE DEATH PENALTY To meet this objection, Schuessler16 and Sellin" study and clinical observationsO have brought compared homicide rates of abolitionist states most criminologists to what Selln has termed the with neighboring capital punishment jurisdictions. "inevitable conclusion," that the death penalty 5 These investigations have consistently led re- has no discernible effect as a deterrent to murder. searchers to one of two conclusions: abolitionist Deterrence theory suggests that if punishment states have slightly lower homicide rates than is to act as an effective deterrent to crime it must their death penalty neighbors"8 or that it is im- be: (1) severe enough to outweigh the potential possible to differentiate capital punishment from pleasures crime might bring; (2) administered with abolitionist states by solely examining homicide certainty; (3) administered promptly; (4) admin- rates. 9 Furthermore, examinations of the relation- istered publicly; and (5) applied with the proper ship between the risk of execution in retentionist judicial attitude.26 Typically, however, only one states and homicide rates have shown no discern- aspect of capital punishment-its severity-has ible correlation between these two factors. 0 been examined as a deterrent to murder. Little Comparative examinations of homicide rates attention has been paid to the certainty of the before and after abolition, and in some cases, the death penalty, with examinations of the remaining restoration of the death penalty, have also ques- three aspects of punishment being completely tioned the efficacy of capital punishment. These absent from the literature. In short, the question investigations reveal that states that have abol- of the death penalty as a deterrent to murder has ished the death penalty have generally experienced only been examined in the most narrow theoretical no unusual increase in homicide. Moreover, the sense. Deterrence theory has simply never been reintroduction of the death penalty (eleven states tried and given a "fair chance." 21As Jeffery states, have abolished the death penalty but later re- "The lesson to be learned from capital punishment stored it) has not been followed by a significant is not that punishment does not deter, but that decrease in homicide."1 the improper and sloppy use of punishment does Another source of evidence questioning the effec- not deter ...., 28 tiveness of capital punishment has come from Of methodological concern, each of the above investigations of the effect that publicity of execu- studies rests upon a number of assumptions, some tions has on homicide rates. Dann's early analysisn of which appear highly questionable.29 These pri- of homicide rates in Philadelphia sixty days pre- 24J. GnLsn, THE WIscoNsIN PRISONER (1946); L. ceding and following the mass execution of five LAWEs, TWENTY THOUSAND YEARS IN SING SING killers revealed no significant difference in rates (1932); K. MENNINGER, THE CRIME OF PUNISHMENT before and after this highly publicized event. Simi- (1968); S.PALmER, A STUmY or MUDER (1960); T. THoMAS, Tis LIFE WE TAEE (1965); Cuthbert, A larly, in a more recent investigation in Philadel- Portfolio of Murders, 116 BRIT. J. or PSYCHIATRY 1 phia, Savitz found no significant difference in the (1970). 25As Bedau notes, a review of Sellin's writings on rate of capital crimes eight weeks before and eight the death penalty, which span 1953-1967, reveal a weeks after the well publicized sentencing of four certain vacillation in the conclusions he draws. At men to death." times, he categorically denies the death penalty as a deterrent to homicide, and at other times he denies it In sum, the above investigations as well as case as a superior deterrent to life imprisonment-two quite "6Schuessler, supra note 6. different conclusions. Bedau, Deterrence and the Death 7 T. SE N, CAPITAL PUmsHENT (1967). Penalty: A Reconsideration, 61 J. CxRi. L.C. & P.S. 539 18E. SUTHERLAND & D. CREssEY, supra note 11; (1970). Sutherland, supra note 2. '6 C. BECCARIA, AN ESSAY ON CRIMES AND PUNISH- mENT '9 W. CHAmBLiss, CRnIE AND THE LEGAL PROCESS (1809); J. BENTHEMu, PxN'ciPEs or PENAL LAW (1969); T. SELEIN, CArrrAL PuIs,s~mNT (1967); (1843); E. Ross, SOCIAL CONTROL (1901). Schuessler, supra note 6. 2E. PuT AmER, ADmmisTRATioN or CRaNrAL 20 H. BEDAU, THE DEATH PENALTY IN AMERIcA LAW (1953). (1967); T. SELLIN, CAPITAL PUN1SHENT (1967); 2 Jeffery, CriminalBehavior and the Learning Theory, Schuessler, supra note 6; Sellin, ROYAL COm'N, supra 56 J. Crxm. L.C. & P.S. 294, 299 (1965). note 5. "Bedau lists four such common assumptions: (1) "H.
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