Does Capital Punishment "Fit the Crime?"

It is possible — some say, likely — that Virginia will soon abolish the death penalty, making it the 23rd state, and the first Southern one, to do so. Historically, Virginia has put more persons to death than has any other state, and since the Supreme Court reinstituted the death penalty, 45 years ago, only Texas, with 570 executions, has killed more.

The movement against capital punishment is an old one, albeit not as venerable as government-sponsored executions themselves. European reformers, notably the late 18th-century Italian jurist, Cesare Beccaria, sought a more effective societal response to criminality by making, as Gilbert and Sullivan’s Mikado put it, “the punishment fit the crime,” thereby overturning the policy, widespread at the time, of executing people for minor crimes including small-scale theft, such as pickpocketing. Included in Beccaria’s thinking, and unusual in his day, was opposition to the death penalty as being not only an improper function of the state but also ineffective as a deterrent.

In the early 19th century, the English social philosopher Jeremy Bentham argued strongly for similar adjustments, basically corresponding to “an eye for an eye and a tooth for a tooth,” rather than an eye for a tooth, or a life for an eye.

It matters greatly whether punishments are just that — a merited consequence of bad actions, regardless of their effect (that is, irrespective of the social consequences of those consequences) — or as a deterrent, intended to prevent others from performing the same actions in the future. The former, if viewed as an ethical or religious obligation, cannot be evaluated empirically, because their legitimacy is simply mandated from the inside (a presumed internal sense of justice that demands to be met) or outside (by religious commandment).

On the other hand, the claim that certain punishments and the threat they convey serve as useful deterrents is one that can be evaluated, as we shall see in subsequent posts. (The Trump Administration’s forcible separation of immigrant children from their parents, when their only “crime” has been attempting to legally enter the US, has been an especially brutal example of a policy officially undertaken as a deterrent.)

Structured levels of punishment make sense in the world of criminology, not only because it is widely seen as immoral to execute someone for stealing a loaf of bread, but for practical reasons: before the relaxation of England’s famously Draconian “Bloody Code,” judges and prosecutors often ignored or understated a crime so as to avoid becoming complicit in overly draconian punishment. Enlightened penology à la Jeremy Bentham and Cesar Beccaria assumed that even potential law-breakers were “rational actors,” who could be deterred by the threat of punishment, so long as the penalty was in line with the crime (hence, credible) as well as reliable, prompt, and widely known.

According to Max Weber, one of the founders of sociology, the state is the political entity with an acknowledged “monopoly on the legitimate use of physical force.” This includes taking the life of its citizens, presumably according to legalized proceedings and for persons convicted of particularly heinous crimes, notably (although not exclusively) first-degree murder.

Although the death penalty has been justified in different ways, including as a means of protecting society by permanently eliminating especially dangerous transgressors, it seems likely that the primary underlying reason it still exists in much of the United States is not merely that it is seen as the ethically or religiously appropriate response to egregious criminality but because it satisfies a deep and widespread public demand for retributive justice.

It is probably no coincidence that the US is the only Western industrialized country in which capital punishment is still practiced, although its popularity is waning. A Gallup survey in 1994 found 80% support of the death penalty, compared to 56% support in 2018.[i] Coincidentally or not, the US is also the most religious Western industrialized country, although religion’s popularity in the US is also diminishing. When Americans were surveyed, beginning in the late 1940s, about their religious beliefs, roughly 1% indicated “none.”

There has been a steady increase in “nones” since then, to about 20% by 2018.[ii] Within its international peer group, American society continues nonetheless to be exceptionally punitive, a likely consequence of a persisting Judeo-Christian orientation that has long emphasized punishment of sin. And nothing is more punitive than executing someone.

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Whatever the “real” reason for the persistence of capital punishment in the US — and no one really knows — it is most often rationalized not as punishment and definitely not as revenge (“justice” is always the preferred explanation), but as providing deterrence against the worst crimes. The argument is that life-threatening consequences would inhibit potential perpetrators from violating the most basic of society’s norms: not to commit treason, rape, and, most conspicuously, intentional homicide.

This claim appears sensible, insofar as reasonable people would seem to avoid actions that could bring about their own deaths. But in fact, it is controversial, with the bulk of evidence strongly suggesting that capital punishment does not deter murders. In the next few posts, we’ll examine this evidence.

I am a professor of psychology emeritus at the University of Washington, and my most recent book is Threats: Intimidation and its Discontents (2020, Oxford University Press).