(CJ Paper) Capital Punishment: A Deterrence to Crime

Capital Punishment: A Deterrence to Crime?

The punishment should always fit the crime, or, at least, that is what the public says when people discuss criminalistic behaviors. Humanity is supposed to be a big concern; however, the Biblical adage, “an eye for an eye” and “a tooth for a tooth”, gets the public in a quandary that may never find an answer that will apply to all those parties on both sides of the fence. What is the answer to true deterrence of crime? We may never really know; however, a better understanding of the terms may aid us in a better understanding.

“Deterrence” means, as discovered through Merriam Dictionary (Online), “the inhibition of criminal behavior by fear especially of punishment.” The trick is often determined by coming up the right “fear of punishment” in order to deter the criminal act in the first place. Often times, that right form of punishment is something that is had to be tried by trial and error, similar to the economic’s theory of supply and demand. If there is too little threat of the punishment, there is too much demand upon cell housing within the penal system; too much of a threat, our penal system is not receiving enough to warrant keeping them operational (and then the criminals act out more knowing that there is no threat of going into the penal system due to lack of cell housing options within the penal system). Fear (albeit it is a powerful influence) though, in the wrong hands, can backfire cause fear within the community and the criminal activity can increase, producing even more fear in a never-ending loop. (Siegel (2001), p. 198)

Siegel, in his Criminology text (Siegel (2001), pgs. 129-135), he further defines “deterrence” into two spectrums – the “general deterrence” and the “specific deterrence”. What is indicated by the “general deterrence” is that crime rates are controlled by the mere threat of criminal punishment and “specific deterrence” is that the sanctions, or punishments, placed so high that it would be all that would be required to prevent people from performing criminal acts for a specific crime. When it comes to the effectiveness of the basis for capital punishment, two theories pose opposing stances – Robert Dann (1935) suggested that the homicides might actually increase after an execution as an average 4.4 more homicides occurred when examining 60 days before and 60 days after several executions he studied; and Isaac Ehrlich (of University of Chicago, 1975) suggested that, through his statistical techniques, homicides end up being a product of interpersonal conflicts and the perception can actually deter murder (although subsequent researchers suggest that Ehrlich had actually made significant errors in his research). It is thought that the failure of capital punishment as a deterrent is due to the nature of the beast, so-to-speak, of the homicide itself.

Even so, while we think it may be plausible at the possibility of innocents being affected by the criminal punishment laws, it was no less severe in the Revolutionary times; in fact, there was a growing sentiment that they wanted the laws to change, which were advocated by an Italian philosopher, Cesare de Beccaria, who believed in the punishment should fit the crime, although in a period where they realized that harsh penal laws didn’t discourage crime. In the History of Criminal Justice text (Johnson & Wolfe (2003), pg. 171-172), one example was given where in (in 1767) a notice was posted in the New York Mercury telling about a pick pocket that occurred in a crowd assembled to watch a hanging of a pick-pocketer. The audacity of a pick-pocketer willing to commit the crime in the midst of the punishment of the crime which was supposed to have acted as a deterrent was a clear blatant farce. It was not until 1785 when Beccaria’s view on equally administered justice, a Bill was proposed based on a principle of proportionality in the assignment of punishments for the various crimes. This proposal was further revised into a Bill (1796) and enacted into law through limiting the death penalty to murder in the first degree (including pre-meditated murder and murder by poisoning).

It would be wrong to presuppose that capital punishment is affecting only men; after all, at the end of 1999:

• 50 women were on death row in 17 State prisons and none were on death row in Federal prisons;
• Ages range between 23 and 70;
• Over half were white;
• Included housewives, prostitutes, a police officer, and a serial killer;
• Had been on death row from times of just a few months to over 17 years;
• All were convicted of murder;
• Victims included their farmhands, husbands, grandchildren, and entire families;
• Although “awaiting execution”, almost all will have their death sentences converted life imprisonment through commutation or through legal proceedings that vacate the sentence or conviction;
• In 1999, only 0.5% of all executions since 1900 had been women. (Rafter, Nicole Hahn (2003), pg. 45)

Barbara Graham was an example of one of four women that were executed via the gas chamber in California before the United States’ Supreme Court ruled the death penalty was unconstitutional in 1972; no California woman had been executed since 1962, although the death penalty was reinstated in 1976. (Rafter, Nicole Hahn (2003), pg. 103)

NAMI - National Alliance for Mental Illness advocates absolutely no death penalty for the mentally ill as they feel that a person can be reintegrated into society after performing even violent acts as a direct result of his/her behavior. Additionally, they advocate the restructuring of the sentencing phraseology to “not guilty by reason of insanity”, “guilty except for insanity” or any other similar terminology because there are systems that provide comprehensive, long-term care and supervision in hospitals and in the community to individuals; while supporting the retention of the “insanity defense” and favoring the two-prong test that includes the volitional as well as the cognitive standard, NAMIadvocates against the adoption of “guilty but mentally ill” statues which stigmatize the defendant. One wouldn’t necessarily execute a cat simply because it jumped into your lap and scratched the heck out of you; you would instead seek treatment for that cat (or, in reality, give it to another family to possess thinking it may act less violent towards them than it does to you). It is the same reasoning that NAMI essentially has when considering the validity in imprisoning the mentally ill instead of allowing them to seek treatment. They even go so far as to describe a jail diversion technique that has been modeled in San Antonio’s Bexar County facilities recently and presented at the Capitol’s Visitor Center earlier this week. Of course, the jail diversion technique is designed for the non-felonious offenders to be eligible for immediate consideration in this program and looks towards getting the treatment for the mental illness before it is too late – thereby, hoping by treating the illness, the offender would not be a repeat offender (since often the criminal acts are out of total character of the individual and pose irrational behavior, sometimes as a result of not having the proper medications or no medications or counseling treatments at all). Perhaps, if this jail diversion model really works everywhere else as it has in Bexar County, Texas, we may see a lower recidivism rate, and perhaps their rage would never lead them towards the path of killing anyone. At this time, it is truly too early to tell the possible affects the jail diversion program will have on ultimately even seeing the mentally ill in the Court Room for a crime that could be punishable by capital punishment; however, having stones in place that can lead to recovery of their illnesses, as well as reintegration of the mentally ill in the society is a very humanistic approach to the capital punishment issue. After all, does Beccaria’s belief in the punishment fitting the crime really hold true in the case of the mentally ill? We may never really know the answers to those questions, but, in the meantime, studies move forward to document and try to come to some sort of a conclusion.

One has too many faulty measurements to really determine if the guilty are truly guilty and the insane are truly insane – or so say the prosecutors, attorneys for the victims of the defendants, attorneys for the defendants, etc. In Harris County, Texas, the Crime Lab is being for-ever picked upon because of the DNA testing that they are finding where there are truly innocents in jails – some even holding sentences on death row! This has been an ongoing battle for more than 2 years; and, simply gives more energy to the opponents of capital punishment. This being said, though, there is a place for the capital punishment to be effected – such in the history of McDuff, who was released early from prison during the late 70’s – early 80’s and killed at least three other ladies soon after his release. McDuff should have never been reintegrated into society; however, should we be forever providing a roof over their heads, three meals a day, and more services than even our poor and middle class society receives to survive the daily rituals of life? And, insofar as the “humanistic” approach, where was their concern for humanity when they were killing? Is their life any more valuable than anyone else’s?

John Rawls is quoted as saying:

“A conception characterizes our moral sensibility when the everyday judgments we do make are in accordance with its principles. These principles can serve as a part of the premises of an argument which arrives in the matching judgments. We do not understand our sense of justice until we know in some systematic way covering a wide range of cases what these principles are.”

(Rawls, John (1999), pg. 41)

In reading about Guatemala’s history, principles, and civil war (and taking a personal mission trip in the Summer of 2003 wherein I learned more), David Wilkenson (a human rights worker) tells a story in his book, Silence on the Mountain: Stories of Terror, Betrayal, and Forgetting in Guatemala, about, in 1979, when the Sandinistas marched triumphantly following the fall of the Somoza dictatorship where Silverio recalled a poem,

“History says, Don’t hope on the side of the grave”:

“But then once in a lifetime
The longed-for tidal wave
Of justice can rise up,
And hope and history rhyme.”

( Wilkinson, David (2002), pg. 342)

While the graves were dug in a little different sense than the act of capital punishment, one can always hope that there is a rhyme and reason behind this form of punishment and its impact upon deterring crime. Guatemala had, in its thirty-six or some-odd years of civil war history, many clandestine graves; it is hoped that the capital punishment in its killing of innocents leave an equally bad taste in the history of any State within the United States who advocates for capital punishment as an absolute deterrent in crime – especially with murders. Can we honestly state that everyone on death row has had a punishment sentenced that fits the crime? One may never know for certain, but as our systems and methods get more and more refined, one truly hope that the rhyme and reason come together and we can vehemently state that the punishment does fit the crime.

Bibliography

Johnson, Herbert A. and, Wolfe, Nancy Travis (2003). History of Criminal Justice (3rd Ed.), Cincinnati, Ohio: Anderson Publishing Co. (pgs. 171-172).

Julia C. Butridge Gallery at the Dougherty Arts Center. “Recent Works by Malaquias Montoya” located at 1110 Barton Springs Road, Austin, Texas, an exhibit from January 5th through January 30th 2005, as sponsored by the Center for Mexican American Studies, College of Liberal Arts, The University of Texas at Austin, in collaboration with La Pena and Resistencia Bookstore/casa de Red Salmon Arts (The Center for Mexican American Studies, The University of Texas at Austin, 1 University Station F9200, Austin, TX 78712).


NAMI - National Alliance for Mental Illness

Rafter, Nicole Hahn (2003). Encyclopedia of Women and Crime. NYC, New York: Checkmark Books (an imprint from Facts on File). (pg. 45).

Rawls, John (1999). A Theory of Justice (Revised Ed.). Cambridge, Massachussets: The Belknap Press of Harvard University Press.

Siegel (PhD), Larry J. (2001). Criminology: Theories, Pattern, and Typologies (7th ed). United States: Wadsworth Thompson Learning. (p. 198).

Wilkinson, David (2002). Silence on the Mountain: Stories of Terror, Betrayal, and Forgetting in Guatemala. Boston: Houghton Mifflin Company. (pg. 342).

Dictionary.com source: Merriam-Webster's Medical Desk Dictionary, Revised Edition © 2002 by Merriam-Webster, Incorporated.