This thesis is meant to stimulate debate.
Please send comments or an antithesis to:
Phil Porter phporter@mindspring.com

The Economics of Capital Punishment



Contention:
Sentencing a prisoner to life in prison is a better allocation of resources than sentencing him to be executed.

First I'll present figures representing the dollar costs of capital punishment versus life in prison/no parole. Then I'll discuss the deterrent effect as the only legitimate rational justification for capital punishment. Then I'll discuss the externalities of capital punishment.

A Duke University study found... "The death penalty costs North Carolina $2.16 million per execution over the costs of a non-death penalty murder case with a sentence of imprisonment for life." ( The costs of processing murder cases in North Carolina / Philip J. Cook, Donna B. Slawson ; with the assistance of Lori A. Gries. [Durham, NC] : Terry Sanford Institute of Public Policy, Duke University, 1993.)

"The death penalty costs California $90 million annually beyond the ordinary costs of the justice system - $78 million of that total is incurred at the trial level." (Sacramento Bee, March 18, 1988).

"A 1991 study of the Texas criminal justice system estimated the cost of appealing capital murder at $2,316,655. In contrast, the cost of housing a prisoner in a Texas maximum security prison single cell for 40 years is estimated at $750,000." (Punishment and the Death Penalty, edited by Robert M. Baird and Stuart E. Rosenbaum 1995 p.109 )

"Florida spent an estimated $57 million on the death penalty from 1973 to 1988 to achieve 18 executions - that is an average of $3.2 million per execution."
(Miami Herald, July 10, 1988).

"Florida calculated that each execution there costs some $3.18 million. If incarceration is estimated to cost $17000/year, a comparable statistic for life in prison of 40 years would be $680,000."
(The Geography of Execution... The Capital Punishment Quagmire in America, Keith Harries and Derral Cheatwood 1997 p.6)

Figures from the General Accounting Office are close to these results. Total annual costs for all U.S. Prisons, State and Federal, was $17.7 billion in 1994 along with a total prison population of 1.1 million inmates. That amounts to $16100 per inmate/year.
(GOA report and testimony FY-97 GGD-97-15 )

From this; the cost of keeping a 25-year-old inmate for 50 years at present amounts to $805,000. Assuming 75 years as an average life span, the $805,000 figure would be the cost of life in prison. So roughly it's costing us $2 million more to execute someone than it would cost to keep them in jail for life. This is just the dollar cost, the externalities will be discussed in a moment.

The belief that the death penalty deters capital crimes, to a greater degree than the alternatives, can be the only rational argument in support of capital punishment. I do not consider revenge a rational action for the following reasons: Revenge doesn't satisfy us all and it may cause harm to some. Our ability to determine justice is limited to the parameters of our paradigm. And, a vengeful act may justify retaliation, thus creating a cycle of violence. Punishment may be useful as a measure to correct the behavior of those who wish to be members of society. But, punishment is nothing more than revenge when the subject is not a candidate for rehabilitation. Revenge is nothing more than an emotional response.
This leaves us with the question: Is there a deterrent effect from the death penalty, or not?
(Note: When I refer to the deterrent effect, I mean the deterrent effect over and above the alternative punishment of life in prison/no parole.)

In summarizing the results of his study Isaac Ehrlich said, " Put differently, an additional execution per year over the period in question may have resulted, on average, in seven or eight fewer murders."
(The Deterrent effect of Capital Punishment: A Question of Life and Death, Ehrlich, Isaac. American Economic Review, LXV(3), June 1975:414. Extracted from: Deterrence and the Death Penalty: A critical Review of the Econometric Literature, by Robert G. Hann 1976 p.6)

Ehrlich's study has been the main basis for the argument that there is a deterrent effect to the death penalty. Most, if not all, subsequent studies have criticized Ehrlich's findings on various grounds.

"The time series model and the data used by Ehrlich permit no inference whatsoever about the deterrence effect of capital punishment."
(The Deterrence Controversy: A Reconsideration of the time series evidence on Capital Punishment, Passell and Taylor, AMS Press 1976. From Hann p.6 )

"By no stretch of the imagination can Ehrlich's analysis be said to affirm a pattern of deterrence in the relationship between executions, risk and homicide rates."
(Deterrence, Brutalization or Nonsense: A Critique of Isaac Ehrlich's Research on Capital Punishment, Bowers and Pierce , Center for Applied Social Research, Northeastern University, unpublished, 1975:35. From Hann p.6)

"Bowers and Pierce take the view that available data are totally inadequate for researching the deterrence question. However, they believe that, if Ehrlich were to continue to maintain confidence in the data, he would have to conclude from their analysis, not only that capital punishment does not deter crime, but something much stronger, that capital punishment increases crime." (Hann p.40) "...executions have a definite brutalizing effect on society." (Bowers and Pierce,1975:35 from Hann, p.40)
The expectaion of the same utility gained by those who endorse the death penalty, at the time of an execution, raises the marginal benefit of like violent action. Thus, more people are inclined to violent acts, because the marginal benefit of engaging in a violent act has increased. (i.e. The Brutalization Effect.)
"... later studies result in equally conclusive findings, that each execution is related to more (not fewer) murders." (Hann p.11)
(Deterrence and the Death Penalty: A critical Review of the Econometric Literature, by Robert G. Hann 1976 )

"Executions demonstrate that it is correct and appropriate to kill those who have gravely offended us." P.274 From his study of the execution/homicide relationship in the State of New York from 1907 to 1964 Bower's concludes: " The point is that the way we have carried out executions historically in the United States appears to have contributed slightly but significantly to the increase of homicides." P.302
(Legal Homicide, William J. Bowers 1984)

"Ehrlich's work does not meet generally accepted standards in the areas of behavioral theory; accuracy of data; and statistical techniques." " In summary, Ehrlich's work does not meet the generally accepted standards of statistical research."
(Deterrence and the Death Penalty: A critical Review of the Econometric Literature, by Robert G. Hann 1976 p.14)

Concluding from their study, Keith Harries and Derral Cheatwood wrote: "Analysis, reinforced the concept of disproportionate involvement of youthful minority people in violence and its concomitant punishment and, in concert with findings from related research, provides some support for the concept of discrete regional cultures of capital punishment. If capital punishment were a significant deterrent to homicide, a sharply inverse relationship should appear between the two phenomena, particularly when seen in longitudinal perspective. That high homicide rates and high execution rates are strongly positively correlated does little to advance the deterrence argument." p.69
(The Geography of Execution... The Capital Punishment Quagmire in America, Keith Harries and Derral Cheatwood 1997)

The murder rate in the U.S. in 1992 was 9.3 murders per 100,000 population. 16 States had a murder rate higher than the national average. Of those 16 all but one, the sixteenth, was a death penalty State.
(Uniform Crime Reports, Oct. 3, 1993. U.S. Department of Justice, F.B.I.)

" In sum, with the lonely exception of Ehrlich, whose work generally has been seriously questioned if not totally discredited, death penalty researchers have found virtually no support for the argument that the level of use of capital punishment (i.e. certainty) influences U.S. murder rates." (Murder, Capital Punishment, and Deterrence: A Review of the Literature, William C. Bailey And Ruth D. Peterson) taken from: (The Death Penalty in America, current controversies. Edited by Hugo Adam Bedau, 1997 p.143)

Further, some proponents of the death penalty argue that the celerity (swiftness) of executions would lend to, or ensure, the deterrent effect. But, " Contrary to theoretical expectations, Bailey (1980a) found no evidence that speedy executions discourage murder." (Bedau, 1997 P.146)

In summary of the deterrence question:
There is no clear empirical evidence to support the contention that capital punishment has any deterrent effect in the commission of the crime of murder. (Over and above the alternative punishment of life in prison/no parole.)

In fairness to Ehrlich, much of the controversy surrounding his work is due to the interpretation of the results. Many death penalty advocates interpret the results incorrectly by insinuating that the findings show an additional deterrent effect over and above an alternatively severe punishment of life in prison/no parole. This is not the case, as Ehrlich himself said: "My paper (1975a p.416) cautioned that the empirical absence of a theoretically important variable-- the severity of imprisonment for murder-- may have affected the results obtained."
(American Economic Review, vol.67 June 1977 p.455 The Deterrent effect of Capital punishment: Reply) Dr. Ehrlich replies to my e-mail

(Point of interest...An email debate with Brad the economist over Dr. Ehrlich's results.)

Even if a deterrent effect could be shown I would have to argue against the death penalty for the following reasons: It's unfair, it's fallible and there is a pronounced historical tendency for abuse.

"The Supreme Court has more or less acknowledged that race continues to play a major role in capital sentencing in America; in any event, this is an undeniable fact. But the Court has decided to do nothing about this form of discrimination and refuses to hear future claims based on it." (Gross and Mauro,p.xiii)

"It is no small comment on our society that we openly and consciously tolerate a system in which race frequently determines whom we execute and whom we spare." (Gross and Mauro, p.xiv)


If you are a black killing a white in Oklahoma you are 10.1% more likely to get a death sentence, then a white killing a white. Table a.1 p.235*
In North Carolina with the same scenario a black is 6% more likely than a white to get a death sentence. Table a.7 p.237*
In Mississippi.... 20.8% more likely. Table a.13 p.239*
In Virginia.... 6.9% more likely. Table a.19 p.241*
In Arkansas.... 10.5% more likely. Table a.25 p.243*
*(Death and Discrimination, Racial disparities in Capital Sentencing Samuel R. Gross and Robert Mauro. 1989)

"Following the Furman decision, legislatures adopted death sentencing procedures that were supposed to eliminate the influence of race from the death sentencing process. However, evidence of racial discrimination in the application of capital punishment continues. Nearly 40% of those executed since 1976 have been black, even though blacks constitute only 12% of the population. And in almost every death penalty case, the race of the victim is white. Last year alone, 89% of the death sentences carried out involved white victims, even though 50% of the homicides in this country have black victims. Of the 229 executions that have occurred since the death penalty was reinstated, only one has involved a white defendant for the murder of a black person."
(Death Penalty Information Center: http://www.essential.org/dpic/dpic.r05.html )

"A 1987 study presented evidence that 350 people convicted of capital crimes in the USA between 1900 and 1985 were innocent of the crimes charged. In most cases the discovery of new evidence resulted in acquittal, pardon, commutation of sentence or dismissal of charges, often years after the original conviction. Some prisoners escaped execution by minutes, but 23 were actually executed."
(Hugo Adam Bedau and Michael L. Radelet, "Miscarriages of justice in potentially capital cases" Stanford Law Review, vol. 40, No. 1, November 1987, pages 21-179. Extracted from: When the State Kills... The death penalty: a human rights issue, Amnesty International 1989 )

"During 1977-96, 1,957 prisoners were removed from a death sentence as a result of dispositions other than execution (resentencing, retrial, commutation, or death while awaiting execution)." (U.S. DEPARTMENT OF JUSTICE BUREAU OF JUSTICE STATISTICS By Tracy L. Snell, BJS Statistician.)

"Since 1973, sixty-nine people, more than one percent of all death-row prisoners, have been released from death row after evidence of their innocence surfaced. Seventeen of these condemned prisoners, including seven from Illinois alone, have been released since 1993. " " In many instances, innocence was discovered not because of the normal appeals process but as a result of new scientific techniques, investigations by journalists, and the tireless work of dedicated attorneys. None of these resources are available to most death-row prisoners."
(Fatal Mistakes and the Criminal 'Injustice' System By Michael Ross and Kurt Rosenberg THE QUAKER ABOLITIONIST Summer 1997)

We've had 5000 years of human civilization to establish the fact that governments will, sooner or later, abuse power. Bureaucrats run governments, always have, and probably always will.

" One needs to assume Machiavellian behavior, deceit, or dishonesty on the part of bureaucrats, because in all likelihood the pursuit of their own interest will be, as it is for everyone else, veiled in the self-perception of dedication and altruism."
(The Logic of Bureaucratic Conduct, Bretton and Wintrope 1982:152)

Past behavior is certainly indicative of future behavior. Therefore, it is irrational to extend to bureaucrats the power to take any action that cannot be reversed. Particularly, if those actions involve life and death.

I cite the following example of bureaucratic incompetence: "Of course, like so many condemned prisoners, Roger Coleman had anything but the finest attorneys, both at trial and for his initial appeal. On appeal, his new attorneys misread the Virginia statute regarding the time limit for appeals and filed their appeal one day late. The courts held that the late filing was the same as not filing and refused to review Coleman's case, despite substantial evidence of his innocence. And the U.S. Supreme Court ruled that he could not complain that his attorney had erred, because he was not legally entitled to an attorney after his initial trial. Roger Coleman was executed in 1992, his claims of innocence ignored. As former Virginia Attorney General Mary Sue Terry so succinctly put it: "Evidence of innocence is irrelevant." "
(Fatal Mistakes and the Criminal 'Injustice' System By Michael Ross and Kurt Rosenberg THE QUAKER ABOLITIONIST Summer 1997)

Supposedly, much of the high costs of the death penalty are due to the procedural safeguards of the court system, but as the above example shows, the bureaucrats of the court system are just as inept as any other government bureaucrat. Giving bureaucrats the right to kill puts us all under an increased risk. You never know when they'll make being a Jew, a gypsy, or a black a capital crime. You may think this sounds outrageous, but it has happened before.
In a society governed by reason, bureaucrats do not have the power to prescribe death as a cure for societal ills.

In the absence of a deterrent effect and in light of the inequity, fallibility and abuse of the death penalty, can we afford the costs attributable to this action? According to one definition of efficiency in society: a state in which no one can be made better off without making someone else worse off, capital punishment fails the test. Another definition of efficiency states "... acting in a way that achieves given goals with a minimum of expense, waste, and effort." (Dolan and Goodman, Economics of Public Policy, p.4) Capital punishment fails this test also.

The existence of the death penalty shows that there is utility to be derived from violence and the taking of life. This utility is exhibited most predominately during or near the time of an execution. (see graph) This exhibition of utility is likely to increase the marginal benefits to violence in the general population, particularly among those of us who are more driven by emotion than by reason. Unfortunately, this is the same segment of the population least likely to be cognizant of a deterrent effect, even if one in fact existed.

The death penalty is an action that reflects on all of society, not just those that initiate it. It's an action that makes a great number of us feel less than human. It's a dastardly deed that dirties us all. The execution of an innocent person would have to be one of the most heinous acts ever committed by man. It reflects on all of us and is entirely preventable.

So in the absence of any evidence of a deterrent effect, capital punishment is nothing more than an animalistic irrational action that has the effect of lessening the value of human life. The cost of Capital punishment is the cost of giving up the ideals of humanity. In other words, it's a loss of positive ethos, the very thing that places us above the animals.
(Ethos: "the distinguishing character, sentiment, moral nature, or guiding beliefs of a person, group or institution." Webster's Dictionary)

Are we to be ruled by reason, or by emotion?
The presumption of rationality is the underlying social contract that forms the basis of all human interactions. Irrational behavior by the authorities of the society breaches the social contract. If our leaders are not obliged to behave rationally, then it is implied that: no one is obliged to be rational. The cost incurred by this breach of the social contract is chaos. (This logic would support the "brutalizing effect" of capital punishment.) Further, because it is the Presumption of rationality that is the basic social contract, violence is never justified, except in self-defense. It is this presumption of rationality that allows for the creation of civil society. As individuals we are obliged to presume that others will act as reasonable beings. Others, in return, are obliged to uphold that expectation. This is the social contract that forms civil society.

See the argument...The Death Penalty is Irrational (This includes an efficiency argument based on the Coase Theorem)

"For most of the past decade, polls have indicated that roughly 85 percent of Texans support the death penalty. But a new survey shows that the execution of Ms. Tucker and the resulting debate led some residents of the Lone Star State to have second thoughts about capital punishment. The survey, conducted by the University of Texas and the Scripps Howard news organization, found that backing for the death penalty has now slipped to 68 percent in the state. The poll had a margin of error of plus or minus three percentage points." This represents an almost 20% drop the last poll taken in 1994. From: (March 23, 1998 N.Y.TIMES Death-Penalty Support Falls After Execution. By B. DRUMMOND AYRES Jr.) This is compelling evidence supporting my contention that the death penalty aspect of our justice system is irrational. Are matters of life and death to be determined by public opinion? This is pure lynch mob mentality.

A further externality comes from the profiling of juries that sit on capital punishment cases. This process denies an entire segment of the population the right to serve on juries equally with their peers. Because of an ethical commitment they are reduced to a second class status. (Example: Catholics and Quakers would be denied a jury position based on their religious beliefs.) Discussion with Catholic theologians

Further, regarding jury profiling:
It is my contention that; those jurors who support the death penalty have a bias that leans toward granting greater credibility to the government's position. This, as opposed to a more neutral bias that a random sampling of all potential jurors would exhibit. If this is true, then capital cases are fixed. It's a stacked deck. The defendant goes into the trial as a loser. The presumption of innocence is defeated.

These costs represent negative externalities to me and all others who believe that reason should rule human behavior. Is satisfying the blood lusts of an irrational majority a justifiable expense? Those who are harmed by the externalities of an activity should be compensated by those who gain utility from that activity. Maybe those who gain from capital punishment should bear the burden of an additional tax to pay for their irrational desires. Or, perhaps as compensation we should execute a politician along with every criminal in order to neutralize the negative externalities?

FIN

In this section I want to present further views that may be regarded as somewhat more subjective in nature.
First, a note on the concept of punishment: Punishment, except when used in the context of rehabilitation, is nothing more than revenge. Wrongdoers accept punishment as a requirement for rehabilitation into society. For those who pose a danger to society and are not candidates for rehabilitation, as would be the prudent view of murderers, some type of confined exile would be the appropriate rational course. For example, for the act of first degree murder, I would not argue with society's right to exile an individual for life in solitary confinement. This action would accomplish the goal of protecting society, as well as lessening the dollar cost and the numerous negative externalities of the present capital punishment system.

Regarding the controversy over deterrence; one might reasonably infer that capital punishment might, depending on the state of society at the moment, have a deterrent effect, have a brutalization effect, have no effect, or have a retaliatory effect. For example in a totalitarian regime, killing a police officer may be viewed by those that oppose the regime, as being a necessary act. To execute the perpetrator of this act may induce others with similar views to retaliate with like action.

The death penalty is not a good act. No one could watch an execution and say, "this is a good thing". And, as I have shown, it is not a necessary thing.
So what is it?
It's just pure vindictiveness on the part of an irrational mob. It's the action of a hypocritical egotistical social paradigm that perceives its value system as the absolute authority in determining justice in the universe. It's a system whose actions conclude that "might makes right".

If you think that the gang of state strapping a woman down to a table and injecting poison into her veins isn't an evil act, then you, your God and your entire belief system are crap. If this is not evil in your social paradigm, then your society is crap.
The gang of state executed Jesus Christ.
The gang of state executed 5 million Jews.
The gang of state virtually exterminated the native American.
On and on and on...
The abuses of power, by the gang of state, are innumerable and indescribably heinous in their abuse of humanity.
And, you continue to enable this abuse...



This thesis is meant to stimulate debate.
Please send comments or an antithesis to:
Phil Porter phporter@mindspring.com

Copyright© 1998 Phil Porter



The following links have good resources relating to the death penalty and have thought enough of this essay to link to it:
Amnesty International... Dornbirn/Austria
The Best Information On The Net
Dr. Cecil Greek's Criminal Justice Page
Crime Connections on the Web
Criminal Justice Resources- The Death Penalty
Death Penalty Information
Human Rights...Resources
Juvenile Justice Links
The Social Science Paper Publisher