Law Office Management
Jun. 2, 2006
The Case for Deterrence
Studying the deterrent effects of executions.
In 1975 an economist at the University of Chicago, Isaac Ehrlich, was both credited and blamed for helping convince the U.S. Supreme Court to lift the moratorium on capital punishment (Gregg v. Georgia, 97 S. Ct. 197 (1976)). In fact, in one of the first published quantitative analyses on the subject, Ehrlich showed that for every individual executed, eight lives were saved. Later, the National Academy of Sciences shot down his analysis. But the debate did not go away, and over the past decade many more studies have been published, some of which even suggest that Ehrlich underestimated the death penalty's deterrent value. For example, in an article published in American Law and Economics Review in 2003, three economists found that for each convicted killer who was executed, 19 lives were saved. And last fall, legal scholars Cass Sunstein and Adrian Vermeule declared in the Stanford Law Review that the deterrent effect of executions is so strong that the government has a moral obligation to carry them out.
Also last fall, economist Joanna M. Shepherd, who teaches at the Emory Law School in Atlanta and was one of the authors of the 2003 American Law and Economics Review article, published an article in the Michigan Law Review that concluded that executions do deter homicides-but only if enough people are executed. In fact, in states that execute people infrequently, Shepherd claims, the death penalty leads to more homicides, because it contributes to what she calls an atmosphere of "brutalization."
Of course, Shepherd's paper was hardly welcomed by those who oppose executions. "When you look at the national data, it's the high levels of executions in Texas and, to a lesser extent, Virginia that drive the so-called deterrence effect," says Richard Berk, a statistics and sociology professor at UCLA who dismisses Shepherd's work as "fatuous." "Take out Texas," he says, "and there's no deterrent effect at all."
At Stanford Law School, Professor Robert Weisberg echoes the point. "A lot of distinguished people think these new analyses are flat-out wrong," he says. But the real problems come when "an unbelievably complicated academic debate" ends up being used as a "political tool."
Annie Gausn
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