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Criminology Capital Punishment
by
Richard Rosenfeld

Introduction

The death penalty is one of the most contentious issues in criminology and public policy, especially in the United States, which retains the death penalty and continues to execute capital offenders even though most other nations have abandoned capital punishment. Important criminological issues include historical and cross-cultural variation in the use of the death penalty; the objectives of capital punishment, including whether the death penalty deters homicide and meets the requirements of justice for victims and the society; the administration of the death penalty, including the role of race, errors and wrongful convictions in the sentencing process, and the cost of capital punishment; public opinion; and the influence of politics, culture, and social structure on public opinion and use of the death penalty. The literature on these and related topics is voluminous, and the focus here is on recent studies and works containing extensive reviews of past research.

General Overviews

Why has the death penalty persisted in the United States while most other nations have discontinued its use as a criminal sanction? Does capital punishment deter homicides? Can it be justified on legal or moral grounds? Is the sentencing process for capital crimes fundamentally flawed? Is the application of the death penalty racially biased? How has public opinion on capital punishment changed over time? Bedau and Cassell 2004, an edited volume, addresses these questions by presenting arguments for and against capital punishment. Radelet and Borg 2000 proposes that the results of social science research on these and related issues have changed the terms of the debate over capital punishment and will contribute to its eventual abolition in the United States. Bohm 2007 and Paternoster, et al. 2007 summarize the issues in ways suitable for classroom use. Haney 2005 argues that the death penalty has persisted in the United States because the general public is disengaged from its practice and outcomes. Sarat 1999 examines the political and cultural supports for capital punishment. Lanier, et al. 2009 is an exceptionally comprehensive edited volume covering research on deterrence, procedural flaws in sentencing, public opinion, racial bias, and other aspects of the death penalty. The final chapter presents an agenda for future research that should be read by anyone contemplating research on capital punishment.

  • Bedau, Hugo Adam, and Paul Cassell, eds. 2004. Debating the death penalty: Should America have capital punishment? New York: Oxford Univ. Press.

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    Thoughtful perspectives favoring and opposing capital punishment in the United States. Issues addressed include the morality and deterrent effects of capital punishment, wrongful convictions, race and the death penalty, and the persistence of the death penalty in the United States as other nations have abolished capital punishment.

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  • Bohm, Robert M. 2007. Deathquest II: An introduction to the theory and practice of capital punishment in the United States. 3d ed. Newark, NJ: Matthew Bender.

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    Addresses the history of capital punishment in the United States, Supreme Court decisions affecting the use of the death penalty, deterrence research, wrongful convictions and sentences for capital crimes, the effects of capital punishment on victims’ families, and public attitudes toward the death penalty. Suitable for undergraduate courses in criminology.

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  • Haney, Craig. 2005. Death by design: Capital punishment as a social psychological system. New York: Oxford Univ. Press.

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    Examines the social-psychological processes that disengage and distance citizens from the process and outcomes of sentencing persons to death. Considers the interrelated roles of the media, jury selection, capital trials, and other factors in maintaining a flawed and unjust death sentencing system.

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  • Lanier, Charles S., William J. Bowers, and James R. Acker, eds. 2009. The future of America’s death penalty: An agenda for the next generation of capital punishment research. Durham, NC: Carolina Academic Press.

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    Comprehensive coverage by leading researchers of constitutional issues related to the death penalty, race and ethnic disparities in capital sentencing, execution methods, clemency and death penalty moratoria, deterrence effects, alternative sanctions, and impacts on the families of offenders and victims. Includes extensive coverage of prior research, a presentation of new research findings, and an agenda for future data collection and research.

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  • Paternoster, Raymond, Robert Brame, and Sarah Bacon. 2007. The death penalty: America’s experience with capital punishment. New York: Oxford Univ. Press.

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    Addresses the history of the death penalty in the United States; changes in capital crimes, sentencing, and execution methods; the influence of race; the moral and legal arguments; errors and flaws in sentencing; public opinion; international law and practice; and the future of the death penalty. Suitable for upper-level undergraduate and graduate courses.

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  • Radelet, Michael L., and Marian J. Borg. 2000. The changing nature of death penalty debates. Annual Review of Sociology 26:43–61.

    DOI: 10.1146/annurev.soc.26.1.43Save Citation »Export Citation »E-mail Citation »

    Discusses changes in arguments for and against the death penalty stemming from social science research on the deterrent effects of the death penalty, flaws in the sentencing process, the disclosure of innocence, racial bias, and public opinion. The authors suggest that the evolving debate over the death penalty points to the eventual abolition of capital punishment in the United States.

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  • Sarat, Austin, ed. 1999. The killing state: Capital punishment in law, politics, and culture. New York: Oxford Univ. Press.

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    Provocative essays on the politics and cultural currents underlying the persistence of capital punishment in the United States. The volume’s editor is a leading opponent of the death penalty.

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Data and Reference Resources

Research and educational materials on capital punishment are available for the United States and other nations from organizations that take an explicit position for or against the death penalty and from those that refrain from taking a moral or legal position on capital punishment. Amnesty International, which opposes the death penalty, provides comprehensive and up-to-date data and information on capital punishment worldwide. The Death Penalty Information Center, which is critical of capital punishment in the United States but does not take a moral position on the issue, provides detailed information on American death penalty cases and houses a special resource center for students on its website. As its name indicates, Pro-Death Penalty.com favors capital punishment and has a strong focus on the victims of persons sentenced to death. The Bureau of Justice Statistics, the statistical arm of the US Justice Department, provides statistics on persons executed and sentenced to death in the United States. The National Archive of Criminal Justice Data contains a data collection on executions carried out in the United States since the early 17th century. The Innocence Project website contains news and information on the use of DNA evidence to reverse criminal convictions, including capital cases.

History

The history of capital punishment in the United States is intimately related to the persistence of race and class inequalities in American society (Allen and Clubb 2008). Nevertheless, notable changes have occurred in the scope and form of capital punishment. By the Civil War, Northern states had limited the application of the death penalty to homicide, while public hangings had given way to private executions behind prison walls (Banner 2002; Masur 1989). During the 20th century, most states replaced hangings with electrocution, the gas chamber, and finally lethal injection as punishment for capital crimes (Marquart, et al. 1998). Social and political activism to abolish the death penalty also has a long history in the United States. Banner 2002 discusses the ebb and flow of anti–death penalty activism during the 19th century, while Haines 1996 examines the anti–death penalty movement of the late 20th century.

  • Allen, Howard W., and Jerome M. Clubb. 2008. Race, class, and the death penalty: Capital punishment in American history. With Vincent A. Lacey. Albany: State Univ. of New York Press.

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    An accessible examination of the history of the death penalty in the United States, with a strong focus on race and socioeconomic disparities in capital sentencing.

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  • Banner, Stuart. 2002. The death penalty: An American history. Cambridge, MA: Harvard Univ. Press.

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    A richly detailed and briskly written history of the death penalty in the United States. Discusses changes in public acceptance of the death penalty as public hangings gave way to executions behind prison walls, and considers the resurgence of death sentences and executions in the late 20th century in the context of a flawed legal framework.

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  • Haines, Herbert H. 1996. Against capital punishment: The anti–death penalty movement in America, 1972–1994. New York: Oxford Univ. Press.

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    Traces anti–death penalty activism in the United States from the suspension of the death penalty by the Supreme Court in the early 1970s through its restoration and increasing use over the next two decades.

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  • Marquart, James W., Sheldon Eckland-Olson, and Jonathan R. Sorensen. 1998. The rope, the chair, and the needle: Capital punishment in Texas, 1923–1990. Austin: Univ. of Texas Press.

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    An extensive case study of 20th-century changes in execution methods and public opinion on the death penalty in Texas, a national leader in the use of capital punishment. Focuses on race and class bias in the application of the death penalty.

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  • Masur, Louis P. 1989. Rites of execution: Capital punishment and the transformation of American culture, 1776–1865. New York: Oxford Univ. Press.

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    Compelling study of the social and cultural changes underlying the movement from public hangings to private executions behind prison walls during the first half of the 19th century.

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International and Comparative Perspectives

Strong international norms have emerged that condemn the use of the death penalty as a punishment for crime, but nations respond to these norms differently depending on domestic political institutions and social arrangements (Bae 2007, Whitman 2003). Hood and Hoyle 2008 considers the scope, fairness, and deterrent effects of capital punishment throughout the world. Johnson and Zimring 2009 focuses on differences in capital punishment across Asian nations. Evans 1996 discusses the rise, fall, resurgence, and eventual abolition of capital punishment in Germany. Otterbein 1986 describes social and cultural conditions underlying the use of capital punishment in small, nonliterate societies.

  • Bae, Sangmin. 2007. When the state no longer kills: International human rights norms and abolition of capital punishment. Albany: State Univ. of New York Press.

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    State policy in response to evolving international norms on capital punishment varies according to domestic political leadership and institutions. This is an excellent case study of the differing responses in South Africa, South Korea, Ukraine, and the United States.

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  • Evans, Richard J. 1996. Rituals of retribution: Capital punishment in Germany, 1600–1987. New York: Oxford Univ. Press.

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    Traces the history of the death penalty in Germany from the early modern period through its temporary abolition in the mid-19th century, its resurgence under Bismark in the 1880s, and its dramatic expansion after the Nazis rose to power. Capital punishment was abolished in Western Germany after World War II but persisted for several decades in East Germany.

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  • Hood, Roger, and Carolyn Hoyle. 2008. The death penalty: A worldwide perspective. 4th ed. New York: Oxford Univ. Press.

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    Discusses the state of the death penalty in all major regions of the world. Covers the scope of capital offenses, methods and frequency of executions, the exclusion of vulnerable populations, legal protections and due process, arbitrariness and racial bias, research on deterrence, and the search for a suitable replacement for the death penalty in nations that retain capital punishment.

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  • Johnson, David T., and Franklin E. Zimring. 2009. The next frontier: National development, political change, and the death penalty in Asia. New York: Oxford Univ. Press.

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    Addresses the history and current context of capital punishment in China, Japan, Taiwan, the Philippines, and South Korea.

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  • Otterbein, Keith F. 1986. The ultimate coercive sanction: A cross-cultural study of capital punishment. New Haven, CT: HRAF Press.

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    Using anthropological data compiled and coded in the Human Relations Area Files, Otterbein examines the cultural and social conditions underlying the use of capital punishment in small, nonliterate societies.

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  • Whitman, James Q. 2003. Harsh justice: Criminal punishment and the widening divide between America and Europe. New York: Oxford Univ. Press.

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    Argues that criminal punishment is harsher in the United States than in most European nations because of a nonhierarchical social system and distrust of state power that, perhaps ironically, result in the abject degradation of criminal offenders. Provides important context for understanding the persistence of capital punishment in the United States.

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Objectives of Capital Punishment

Four basic objectives of capital punishment can be distinguished: deterrence, retribution, incapacitation, and serving the needs of victims. The question of deterrence is whether the death penalty prevents the commission of the crimes to which it is applied. Retribution (or “just deserts”) concerns the question of whether certain crimes require the death penalty as the only morally just punishment. Incapacitation refers to the inability of offenders who are put to death to carry out additional crimes. Finally, a recent, more therapeutic objective has been added to this list: capital punishment affords “closure” for the victim’s family and other survivors. Although each of these objectives has been widely debated by capital punishment scholars, the deterrence issue has received by far the greatest attention in the criminological research literature and is emphasized here.

Deterrence

Does the death penalty deter (i.e., reduce) criminal homicide? What is the marginal effect of the death penalty on homicide; that is, what is its deterrent effect over and above alternative sanctions, such as life imprisonment without parole? These questions have been debated by critics and proponents of the death penalty throughout the history of capital punishment. The economist Isaac Ehrlich’s research showing that the death penalty deters homicide (Ehrlich 1975) initiated the modern era of death penalty research based on systematic statistical analysis of the effect of capital punishment statutes, death sentences, and executions on homicide rates. By the end of the 20th century, the bulk of that research pointed to the conclusion that capital punishment has little or no deterrent effect on homicide. In the early 21st century, however, a new round of econometric research reopened the deterrence debate among social scientists. It remains to be seen whether this research and the criticism it has generated will upend the social science consensus that capital punishment does not deter homicide. Ehrlich’s conclusion that the death penalty reduces homicide, which was based on advanced econometric methods, was criticized by a National Academy of Sciences study (Blumstein, et al. 1978) that found no credible evidence of a deterrent effect. Subsequent research on the effect of the death penalty on felony murders (Peterson and Bailey 1991) and killings of police officers (Bailey and Peterson 1994) found little consistent evidence of a deterrent effect of capital punishment. Some studies have found that the death penalty has contrasting effects on different types of homicide, increasing some types through a “brutalization effect” and reducing other types through a deterrent effect (Cochran and Chamlin 2000).

  • Bailey, William C., and Ruth D. Peterson. 1994. Murder, capital punishment, and deterrence: A review of the evidence and an examination of police killings. Journal of Social Issues 50.2: 53–74.

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    A monthly time-series analysis of the effect of death penalty statutes, frequency of executions, and news coverage of executions on killings of police officers. The authors find no consistent effect of capital punishment on police killings. Available online.

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  • Blumstein, Alfred, Jacqueline Cohen, and Daniel Nagin, eds. 1978. Deterrence and incapacitation: Estimating the effects of criminal sanctions on crime rates. Washington, DC: National Academies Press.

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    An authoritative review of evidence by a panel of the National Academy of Sciences regarding the effect of criminal sanctions on crime. Includes an extensive assessment of Ehrlich 1975, which concludes that the death penalty deters homicides. The panel concludes that the available research offers “no useful evidence on the deterrent effect of capital punishment” (p. 9).

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  • Cochran, John K. and Mitchell B. Chamlin. 2000. Deterrence and brutalization: The dual effects of executions. Justice Quarterly 17.4: 685–706.

    DOI: 10.1080/07418820000094721Save Citation »Export Citation »E-mail Citation »

    Investigates the effects on homicides of the reintroduction of the death penalty in California in 1992, after a 25-year moratorium. The authors find evidence of a deterrent effect (i.e., reduction) in felony, nonstranger homicides, and a “brutalization effect” (i.e., increase) in stranger homicides stemming from arguments.

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  • Ehrlich, Isaac. 1975. The deterrent effect of capital punishment: A question of life and death. American Economic Review 65.3: 397–417.

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    A groundbreaking and highly controversial study, using modern econometric methods, that concludes that the death penalty reduces homicide in the United States.

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  • Peterson, Ruth D., and William C. Bailey. 1991. Felony murder and capital punishment: An examination of the deterrence question. Criminology 29.3: 367–395.

    DOI: 10.1111/j.1745-9125.1991.tb01071.xSave Citation »Export Citation »E-mail Citation »

    A monthly time-series analysis of the effect of the frequency of executions and television news coverage of executions on felony homicides. The authors find little consistent evidence that capital punishment deters felony homicides.

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Revival of the Deterrence Debate

By the end of the 20th century, the consensus position among social scientists was that the death penalty had little or no deterrent effect on homicide. But the deterrence debate was revived early in the 21st century by new studies showing large deterrent effects of capital punishment (Dezhbakhsh, et al. 2003; Mocan and Gittings 2003; Shepherd 2004). Although the authors of these studies argue that their statistical methods overcome the limitations of prior research, their research has stimulated a new round of methodological criticism. Cohen-Cole, et al. 2008 argues that “model uncertainty” weakens the new deterrence studies. Model uncertainty refers to the fact that differing but equally reasonable statistical models often produce conflicting results. Donohue and Wolfers 2006 reanalyzes the data used in several of the recent deterrence studies and concludes that the results are very sensitive to the specification and form of the statistical models used to estimate deterrent effects. In an innovative analysis, Katz, et al. 2003 compares the effects of the death penalty on homicide with the effects of the “quality of life” in prison, which they measure using the death rate among prisoners. They find a robust deterrent effect of the prisoner death rate but little effect of the death penalty on homicide. By the end of the first decade of the 21st century, the new deterrence debate showed few signs of abating.

  • Cohen-Cole, Ethan, Steven Durlauf, Jeffrey Fagan, and Daniel Nagin. 2008. Model uncertainty and the deterrent effect of capital punishment. American Law and Economics Review, Advance Access publication, April 15.

    DOI: 10.1093/aler/ahn001Save Citation »Export Citation »E-mail Citation »

    Contemporary research on the deterrent effect of capital punishment is plagued by “model uncertainty.” Research findings differ depending on the statistical model on which they are based, but little theoretical justification exists for preferring one model over another. The authors present methods to address this problem and conclude that evidence of a deterrent effect of the death penalty on homicide is weak. Available online by subscription.

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  • Dezhbakhsh, Hashem, Paul H. Rubin, and Joanna M. Shepherd. 2003. Does capital punishment have a deterrent effect? New evidence from postmoratorium panel data. American Law and Economics Review 5.2: 344–376.

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    Using econometric methods that the authors argue overcome methodological deficiencies in prior research, the study concludes that the death penalty has a large and robust deterrent effect on homicide.

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  • Donohue, John J., and Justin Wolfers. 2006. Uses and abuses of empirical evidence in the death penalty debate. Stanford Law Review 58:791–845.

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    The authors analyze a variety of data sets and apply alternative statistical models to disclose the effect of the death penalty on homicide. They find that deterrent effects of the death penalty are generally weak and unstable across reasonable modifications in the data and models. They conclude, therefore, that the weight of the evidence does not support policies premised on the assumption that the death penalty saves lives.

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  • Katz, Lawrence, Steven D. Levitt, and Ellen Shustorovich. 2003. Prison conditions, capital punishment, and deterrence. American Law and Economics Review 5.2: 318–343.

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    Using state-level data for the period of 1950 to 1990, the authors find that as the quality of life in prisons worsens (proxied by increases in the prisoner death rate), the general homicide rate declines. In contrast, they find little evidence that executions deter homicide.

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  • Mocan, H. Naci, and R. Kaj Gittings. 2003. Getting off death row: Commuted sentences and the deterrent effect of capital punishment. Journal of Law and Economics 46.2: 453–478.

    DOI: 10.1086/382603Save Citation »Export Citation »E-mail Citation »

    The authors found that executions reduced homicides while sentence commutations (and other removals from death row) increased homicides in US states between 1977 and 1997.

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  • Shepherd, Joanna M. 2004. Murders of passion, execution delays, and the deterrence of capital punishment. Journal of Legal Studies 33.2: 283–321.

    DOI: 10.1086/421571Save Citation »Export Citation »E-mail Citation »

    In contrast with prior research, the author finds that the death penalty reduces all types of homicide, including “passion” killings and murders of intimates. The deterrent effect of homicide, however, is weakened by longer stays on death row.

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Retribution, Closure, and Incapacitation

Many of the most important moral and legal questions about capital punishment have not been addressed in research and debates over the deterrent effects of the death penalty. Is the death penalty just punishment for the most serious crimes? Do those who commit homicide retain a right to life? Bedau 1987 addresses these and related issues in a spirited and thoughtful evaluation of the moral bases of capital punishment. Does the death penalty bring closure to the victim’s family? How can the needs of “co-victims” be met effectively without jeopardizing the rights of the accused? Acker and Karp 2006 considers the perspectives and needs of the survivors of capital crimes. How likely are capital offenders to commit future serious crimes? This is the key question with respect to the incapacitation effect of the death penalty. Sorensen 2009 discusses the results and limitations of prior research and guidelines for future research on this issue.

  • Acker, James R., and David R. Karp, eds. 2006. Wounds that do not bind: Victim-based perspectives on the death penalty. Durham, NC: Carolina Academic Press.

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    Addresses the perspectives and needs of survivors or co-victims of capital crimes. Important research issues include the use of victim-impact statements in capital trials and the effect of the death penalty legal process on co-victims.

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  • Bedau, Hugo Adam. 1987. Death is different: Studies in the morality, law, and politics of capital punishment. Boston: Northeastern Univ. Press.

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    A collection of revised essays, originally published elsewhere, by a longtime opponent of capital punishment. The primary emphasis is on the morality of capital punishment. Other issues include whether opposition to the death penalty is led by an elite “moral minority” out of touch with American public opinion, whether the death penalty violates the US Constitution’s prohibition of cruel and unusual punishment, and the symbolic power of capital punishment.

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  • Sorensen, Jon. 2009. Researching future dangerousness. In The future of America’s death penalty: An agenda for the next generation of capital punishment research. Edited by Charles S. Lanier, William J. Bowers, and James R. Acker, 359–377. Durham, NC: Carolina Academic Press.

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    Considers methodological issues and data needs in predicting the dangerousness of capital offenders, and sets forth an agenda for future research.

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  • Zimring, Franklin E. 2003. The contradictions of American capital punishment. New York: Oxford Univ. Press.

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    Explores the cultural foundations of the claim that the death penalty provides closure for the victim’s family and other survivors. Zimring weaves the closure argument into a broader assessment of the symbolic role of capital punishment in protecting local communities against crime.

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Race and the Death Penalty

The role of race in the use of the death penalty is an important and contentious issue in debates over capital punishment in the United States. Allen and Clubb 2008 reviews the history of American capital punishment, highlighting the persistence of racial disparities in capital punishment. Baldus, et al. 1990, an important contemporary study, found that the death penalty is more likely to be imposed in Georgia cases with white victims, especially when the defendant is black. In McCleskey v. Kemp (see "Major US Supreme Court Cases"), which went before the Supreme Court in 1987, the defense used the Baldus study’s findings to support its claim of racial discrimination. In a five-to-four ruling, however, the Court found that the petitioners failed to prove discriminatory intent by the state of Georgia. Paternoster and Brame 2003, an analysis of Maryland capital cases, found that the death penalty is more likely in cases with white victims and black defendants than those with other victim-defendant combinations. Berk, et al. 2005 contends that these results were based on faulty statistical methods. In new analyses, Paternoster and Brame 2008 replicated the major results of the authors’ original investigation. The bulk of research on race disparities in capital sentencing is based on statistical analyses of capital cases. Experimental methods have also been used to examine race disparities in the imposition of the death penalty. Shaked-Schroer, et al. 2008 found that racial bias is reduced in the sentencing phase of capital cases when jurors are given simplified instructions and when juries are racially diverse.

  • Allen, Howard W., and Jerome M. Clubb. 2008. Race, class, and the death penalty: Capital punishment in American history. With Vincent A. Lacey. Albany: State Univ. of New York Press.

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    Historical overview of capital punishment in the United States, with a strong focus on racial disparities in the use of the death penalty.

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  • Baldus, David C., George Woodworth, and Charles A. Pulaski Jr. 1990. Equal justice and the death penalty: A legal and empirical analysis. Hanover, NH: Univ. Press of New England.

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    A landmark study analyzing the effect of the race of the victim and defendant on the outcome of capital cases in Georgia. The major finding was that, with other influences controlled, the application of the death penalty is significantly more likely in cases with white victims, especially when the defendant is black.

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  • Berk, Richard, Azusa Li, and Laura J. Hickman. 2005. Statistical difficulties in determining the role of race in capital cases: A re-analysis of data from the state of Maryland. Journal of Quantitative Criminology 21.4: 365–390.

    DOI: 10.1007/s10940-005-7354-7Save Citation »Export Citation »E-mail Citation »

    A reanalysis of Paternoster and Brame 2003. Authors determined that the evidence for racial disparities in Maryland capital cases is weak.

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  • Paternoster, Raymond, and Robert Brame. 2003. An empirical analysis of Maryland’s death sentencing system with respect to the influence of race and legal jurisdiction. College Park: Univ. of Maryland.

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    A study of Maryland capital cases that found that the death penalty is more likely to be imposed when the victim is white and in cases with black defendants and white victims. Also found that these race effects on capital sentencing vary by geographic location in the state. Full report available online.

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  • Paternoster, Raymond, and Robert Brame. 2008. Reassessing race disparities in Maryland capital cases. Criminology 46.4: 971–1008.

    DOI: 10.1111/j.1745-9125.2008.00132.xSave Citation »Export Citation »E-mail Citation »

    In response to Berk, et al. 2005, the authors conducted new analyses of race disparities in Maryland capital cases, leading them to reaffirm their prior conclusion that the death penalty is more likely to be imposed in cases with black defendants and white victims.

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  • Shaked-Schroer, Netta, Mark Costanzo, and Amy Marcus-Newhall. 2008. Reducing racial bias in the penalty phase of capital trials. Behavioral Sciences and the Law 26.5: 603–617.

    DOI: 10.1002/bsl.829Save Citation »Export Citation »E-mail Citation »

    An experimental study showing that jurors’ bias against black defendants in the penalty phase of capital cases is reduced when jurors are given simplified instructions and juries are racially diverse.

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Errors and Reversals in Death Sentences

Have innocent persons been executed in the United States? That question underlies recent studies of exonerations and other grounds for reversal in capital cases. Dieter 2004 provides detailed descriptions of exonerations, many of which resulted from DNA evidence showing the defendant’s innocence. A Columbia University Law School team of researchers has conducted the most extensive study of appeals of capital cases to date (Liebman, et al. 2000; Liebman, et al. 2002; and Gelman, et al. 2004). They find that roughly two-thirds of state capital cases are reversed on appeal, that the reversals stem primarily from incompetence on the part of defense lawyers and the suppression of exculpatory evidence by police and prosecutors, and that error and reversal rates in capital cases are highest in jurisdictions that make the heaviest use of the death penalty. The authors conclude that the American death penalty system is seriously flawed and that, if used at all, capital punishment should be reserved for the very worst offenders and cases in which no doubt exists that the defendant committed the crime.

  • Dieter, Richard C. 2004. Innocence and the crisis in the American death penalty. Washington, DC: Death Penalty Information Center.

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    Documents the increase in exonerations in death penalty cases and the corresponding reduction in executions and public support for the death penalty. Available online from the DPIC.

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  • Gelman, Andrew, James S. Liebman, Valerie West, and Alexander Kiss. 2004. A broken system: The persistent patterns of reversals of death sentences in the United States. Journal of Empirical Legal Studies 1.2: 209–261.

    DOI: 10.1111/j.1740-1461.2004.00007.xSave Citation »Export Citation »E-mail Citation »

    An analysis of the data compiled by Liebman, et al. 2000 indicating that errors and reversals in capital cases are associated with greater use of the death penalty and lower rates of apprehending and imprisoning violent offenders. Authors propose that the death penalty be restricted to the “worst of the worst” offenders.

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  • Liebman, James S., Jeffrey Fagan, and Valerie West. 2000. A broken system: Error rates in capital cases, 1973–1995. New York: Columbia Law School.

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    Analyzes more than 4,000 appeals of state capital cases between 1973 and 1995 in the United States. The authors find that two-thirds of the death sentences were overturned on appeal, and they attribute the reversals primarily to incompetent defense lawyers and suppression of exculpatory evidence at trial by police or prosecutors. Available online.

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  • Liebman, James S., Valerie West, Jeffrey Fagan, Garth Davies, Andrew Gelman, and Alexander Kiss. 2002. A broken system, part II: Why there is so much error in capital cases, and what can be done about it. New York: Columbia Law School.

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    The main finding of this follow-up report to Liebman, et al. 2000 is a direct relationship between a jurisdiction’s use of the death penalty and the probability that a capital case is reversed on appeal: capital error rates are substantially greater in jurisdictions making the heaviest use of the death penalty. Available online.

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Public Opinion

A common argument in favor of retaining capital punishment in the United States is that a majority of Americans support the death penalty. But death penalty support varies according to the characteristics of individuals and the places they live. For example, whites are much more likely than blacks to support capital punishment, and the association between race and death penalty support does not disappear when social class, region of residence, political orientation, or religious views are controlled (Unnever and Cullen 2007). Residents of areas with higher homicide rates, larger black populations, and more conservative political climates are more likely than residents of other areas to support the death penalty (Baumer, et al. 2003). Support for the death penalty in opinion surveys also depends on whether respondents believe innocent persons have been executed (Unnever and Cullen 2005) and whether life in prison without parole is presented as an alternative to the death penalty (Cullen, et al. 2000). Public policy on the death penalty mirrors public opinion to a degree. For example, death sentencing rates are higher in states where public support for capital punishment is greatest. But public opinion is itself influenced by preexisting state policy on capital punishment (Norrander 2000). American public opinion and public policy on capital punishment are mutually reinforcing.

  • Baumer, Eric P., Steven F. Messner, and Richard Rosenfeld. 2003. Explaining spatial variation in support for capital punishment: A multilevel analysis. American Journal of Sociology 108.4: 844–875.

    DOI: 10.1086/367921Save Citation »Export Citation »E-mail Citation »

    Finds that public support for capital punishment is elevated in U. S. geographic areas with higher homicide rates, large black populations, and more conservative political climates. These “contextual effects” (i.e., attributes of places) withstand controls for “compositional effects” (i.e., differences in the race, sex, and other attributes of individuals correlated with death penalty attitudes).

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  • Cullen, Francis T., Bonnie S. Fisher, and Brandon K. Applegate. 2000. Public opinion about punishment and corrections. In Crime and justice: An annual review of research. Vol. 27. Edited by Michale Tonry, 1–79. Chicago: Univ. of Chicago Press.

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    Extensive review of public attitudes about punishment for crime. The authors find that Americans support capital punishment, “three strikes” legislation, and other punitive sanctions, but that they also support rehabilitation and crime prevention programs. Support for capital punishment in opinion surveys decreases substantially when life in prison without parole is presented as an alternative to the death penalty.

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  • Norrander, Barbara. 2000. The multi-layered impact of public opinion on capital punishment implementation in the American states. Political Research Quarterly 53.4: 771–793.

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    Public attitudes and public policies on the death penalty are highly intertwined. Public opinion favoring capital punishment increases death penalty sentencing rates in US states, but current public opinion favoring the death penalty is itself increased by preexisting capital punishment laws.

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  • Unnever, James D., and Francis T. Cullen. 2005. Executing the innocent and support for capital punishment: Implications for public policy. Criminology and Public Policy 4.1: 3–38.

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    Analysis of 2003 Gallup poll data finds that three-quarters of Americans believe an innocent person has been executed in the United States within the past five years. Those who believe the innocent have been executed are less likely than others to support capital punishment, especially among African Americans.

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  • Unnever, James D., and Francis T. Cullen. 2007. Reassessing the racial divide in support for capital punishment. Journal of Research in Crime and Delinquency 44.1: 124–158.

    DOI: 10.1177/0022427806295837Save Citation »Export Citation »E-mail Citation »

    Analysis of General Social Survey data on attitudes toward capital punishment finds that African Americans are much less likely than whites to support the death penalty, regardless of statistical controls for social class, region, political orientation, or religious views.

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Social Structure, Culture, and Capital Punishment

Why is the death penalty legal in some US states but not in others? What social and cultural conditions are associated with the persistence of capital punishment and the frequency of its use in the United States? Jacobs and Carmichael 2002 attributes capital punishment to the race and ethnic composition of a state’s population, the degree of economic inequality in the state, and the state’s political culture. Subsequent studies (Jacobs and Kent 2007; Jacobs, et al. 2007) identified several social and political factors, including Republican electoral strength, that are associated with the frequency of executions and the probability that an inmate on death row will be put to death. Zimring 2003 addresses a seeming paradox with respect to the persistence of capital punishment in the United States: Americans are deeply suspicious of governmental power and yet are willing to grant the government the supreme exercise of power in putting people to death for violating the law. Zimring proposes that this seeming contradiction is rooted in a “vigilante” tradition (indicated by a history of lynching) that converts governmental power to an exercise of local, communal social control. Messner, et al. 2006, a study of public support for the death penalty, finds only partial support for Zimring’s provocative thesis.

  • Jacobs, David, and Jason T. Carmichael. 2002. The political sociology of the death penalty: A pooled time-series analysis. American Sociological Review 67.1: 109–131.

    DOI: 10.2307/3088936Save Citation »Export Citation »E-mail Citation »

    The likelihood that a US state permits capital punishment is related to the state’s race and ethnic composition, degree of economic inequality, and conservative political climate. The death penalty is more likely to be legal in states with larger minority populations, greater economic inequality, and more conservative political climates.

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  • Jacobs, David, and Stephanie L. Kent. 2007. The determinants of executions since 1951: How politics, protests, public opinion, and social divisions shape capital punishment. Social Problems 54.3: 297–318.

    DOI: 10.1525/sp.2007.54.3.297Save Citation »Export Citation »E-mail Citation »

    A time-series analysis of executions finds that executions increase with public support for the death penalty and Republican strength in the state. These factors also influence the imposition of death sentences. Other factors, including national Republican strength, presidential campaigns that emphasize law-and-order issues, economic inequality, and higher murder rates, influence the frequency of executions through their effects on the appeals process in death penalty cases.

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  • Jacobs, David, Zhenchao Qian, Jason T. Carmichael, and Stephanie L. Kent. 2007. Who survives on death row? An individual and contextual analysis. American Sociological Review 72.4: 610–632.

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    Most persons sentenced to death in the United States are not executed. This study finds that the probability of execution is higher for minority death row inmates sentenced to death for killing whites. State-level factors that elevate the probability of execution include political ideology, votes for Republican presidential candidates, and minority presence in the state.

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  • Messner, Steven F., Eric P. Baumer, and Richard Rosenfeld. 2006. Distrust of government, the vigilante tradition, and support for capital punishment. Law and Society Review 40.3: 559–590.

    DOI: 10.1111/j.1540-5893.2006.00273.xSave Citation »Export Citation »E-mail Citation »

    Distrust of government increases death penalty support among whites and decreases death penalty support among blacks in the United States. The study also finds that whites residing in areas with a history of lynching are more likely than other whites to support the death penalty, but that residing in such areas has no effect on death penalty support among blacks.

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  • Zimring, Franklin E. 2003. The contradictions of American capital punishment. New York: Oxford Univ. Press.

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    An engaging account of the persistence of capital punishment in the United States. The major “contradiction” in capital punishment that Zimring highlights is the coexistence of a deep distrust of government by Americans with support for the government’s right to put persons to death for law violation.

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Major US Supreme Court Cases

In 1972 the US Supreme Court issued its landmark decision in Furman v. Georgia that the death penalty, as currently practiced, violated the Eighth and Fourteenth Amendments to the Constitution. This decision, which ended executions in the United States for several years, did not forbid capital punishment in principle and set forth guidelines for legislatures to follow in revising death-sentencing procedures to meet constitutional requirements. In 1976 the Court upheld the constitutionality of the death penalty in Gregg v. Georgia, as long as appellate review is guaranteed and evidence of the defendant’s character and record is allowed at trial for sentencing purposes. In subsequent decisions, the Court has narrowed the range of offenses and persons for which the death penalty is permissible. In 1977 the Court disallowed imposition of the death penalty for rape of an adult (Coker v. Georgia), and in 2008 it invalidated capital punishment for raping a child (Kennedy v. Louisiana). In 2002 the Court forbade the death penalty for mentally retarded offenders (Atkins v. Virginia), and in 2005 it held that the death penalty could not be imposed on persons who were under the age of 18 when they committed the crime for which they were being sentenced (Roper v. Simmons). In a case with special relevance for social scientists, the Court held in McCleskey v. Kemp (1987) that statistical evidence of racial disparities in death sentences, which it did not dispute (see Baldus, et al. 1990), is not sufficient to overturn a death sentence absent a showing of discriminatory purpose by the sentencing authority. The summary decisions shown here are from case descriptions at the legal research website Justia.com.

  • Baldus, David C., George Woodworth, and Charles A. Pulaski Jr. 1990. Equal justice and the death penalty: A legal and empirical analysis. Hanover, NH: Univ. Press of New England.

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    Statistical study of Georgia capital cases showing that, with other factors controlled, the death penalty is imposed disproportionately for crimes involving white victims, especially when the defendant is black. The study was the basis of the claim in McCleskey v. Kemp (see "Major US Supreme Court Cases") of racial discrimination in death sentences.

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  • Justia.com

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    A legal research website that provides case previews, the full text of Court opinions, and links to other legal research websites.

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  • Furman v. Georgia. 408 US 238 (1972).

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    Court held that the death penalty, as practiced, constitutes cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments to the Constitution.

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  • Gregg v. Georgia. 428 US 153 (1976).

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    Court held that the death penalty does not per se violate the Eight Amendment standard of cruel and unusual punishment. Rather, the Constitution requires appellate review of all death sentences and that the character and record of the defendant be considered in sentencing. The latter requirement is best achieved by a bifurcated procedure that separates the determination of guilt or innocence from the decision to impose the death penalty or other punishment.

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  • Coker v. Georgia. 433 US 584 (1977).

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    Court held that imposition of the death penalty for the crime of rape violates the Eighth Amendment standard of cruel and unusual punishment.

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  • McCleskey v. Kemp. 481 US 279 (1987).

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    Court rejected petitioner’s claim, based on statistical evidence of racial disparities in Georgia death penalty cases (see Baldus, et al. 1990), that the death sentence had been carried out in a racially discriminatory manner and thereby violated the Fourteenth and Eighth Amendments. Petitioner failed to prove discriminatory intent in his case.

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  • Atkins v. Virginia. 536 US 304 (2002).

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    Court held that the execution of mentally retarded criminals constitutes cruel and unusual punishment, prohibited by the Eighth Amendment.

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  • Roper v. Simmons. 543 US 551 (2005).

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    Court held that the Eighth and Fourteenth Amendments prohibit imposition of the death penalty on offenders who were under the age of 18 when they committed the crime.

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  • Kennedy v. Louisiana. 544 US ___ (2008).

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    Court held that capital punishment for the aggravated rape of a child violates the Eighth Amendment’s prohibition against cruel and unusual punishments.

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LAST MODIFIED: 12/14/2009

DOI: 10.1093/OBO/9780195396607-0045

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