Deterrence and the constitution: On the limits of capital punishment

DETERRENCE AND THE CONSTITUTION: ON THE LIMITS OF CAPITAL PUNISHMENT Austin S a r a t 1 What does i t mean to say that a government is limited or constitutional in form?

I t means, in one respect, that the state must recognize

the rights and dignity of its citizens and not a r b i t r a r i l y interfere with those rights or diminish that dignity.

Any interference by the state must

be j u s t i f i e d ; public authorities must have strong reasons for subjecting citizens to deprivation.

Furthermore, in a constitutional polity, when

a state, however hesitantly, imposes deprivations i t must do so according to f a i r and regularized procedures (20).

In the American experience i t

is primarily the Bill of Rights which limits what the state can do to citizens, the purposes for which the state can impose on them and the ways in which i t can do so.

One of the most important areas of limitation

involves the way in which the state deals with individuals accused of violating the law. Another and closely related area of limitation involves the problem of how the state deals with those who are, in fact, found to have committed such violations.

This is the sphere of punishment.

The question of when and how the state may punish its citizens is one of the most vexing of those which face a constitutional polity (16). 1Austin Sarat is Assistant Professor of Political Science, Yale University, New Haven, Connecticut. The author wishes to acknowledge the help and encouragement of Professor George Kateb and President John William Ward, both of Amherst College.

312 I t is vexing because when the state punishes i t is transformed from an instrument of the citizen into his master.2 The suggestion is not that punishment is per se incompatible with constitutional morality, only that they co-exist uncomfortably (19). Constitutionalism requires that the occasions on which punishments canbe administered be clearly articulated and that the state's power to punish be subject to s t r i c t scrutiny.

Such scrutiny must include a consideration of the j u s t i f i -

cations of and limits upon the kinds of punishment which the state may wish to impose. To talk about the justifications of punishment is, in effect, to talk about the limits on punishment (17).

The reasons why we punish

establish the boundaries which shape the kinds of punishments which may be imposed and the manner in whicb they are administered. This relationship is expressed in the classical dictum, "lex talionis." The belief that one may f a i r l y punish the wrongdoer because evil conduct deserves an appropriate return implies that the punishment imposed ought to be in proportion to the evil which the wrongdoer caused (I).

Questions

about the relationship of the justifications and limits on punishment as well as questions about the proper scope of the state's punitive powers are at the heart of the contemporary controversy over the morality, u t i l i t y and legality of capital punishment. The controversy concerning the death penalty has in recent years focused on its compatibility with the constitutional prohibition of "cruel 2Some deny that such a transformation occurs either because they accord sovereignty to the state or because they believe that the criminal, In effect volunteers for his punishment.

313 and unusual" punishment. Within the last year the United States Supreme Court has decided a series of cases challenging the constitutionality of death as a punishment. The Court ruled that the 8th Amendment does not prohibit the death penalty per se

(15) although i t does impose

limits on the kinds of crimes for which a death sentencemay be imposed (8) and on the kinds of procedures and considerations which must be applied in capital cases (28).

Yet these decisions have not put an end

to the debate about capital punishment (6).

The Court i t s e l f has acknowl-

edged that the meaning of the 8th amendment and the limits which i t imposes are not fixed in the usages of the past or present; the nature of "cruel and unusual" punishment can only be determined in l i g h t of the "evolving standards of decency which mark the progress of a humane society" (36, 4).

I t would be unrealistic to think that the Supreme Court will

soon undo its recent line of death penalty decisions, yet i t would be equally unrealistic to assume that the constitutional status of capital punishment is forever resolved.

I t is the purpose of this paper to examine

the way in which the Supreme Court has reached i t s current understanding of the constitutionality of capital punishment and, in particular, to analyze the way in which the Court has understood the j u s t i f i c a t i o n s required and limits imposed on the state's use of death as a penalty. The central focus is on deterrence and the question of whether deterrence as a j u s t i f i c a t i o n for the death penalty imposes constitutionally recognizable limits on i t s use. To speak of deterrence as a j u s t i f i c a t i o n for capital punishment means that a given person at a given time does not commit a specific

314 crime because he believes that he runs the risk of execution, and he prefers to avoid that risk notwithstanding the benefits which might flow from the commission of the crime (2, p. 206; 12, chapter 1).

When

the state executes a convicted criminal i t transforms a citizen turned victimizer into a victim.

I t may do so in the hope that by taking the

"real" l i f e of the criminal i t will save the lives of hypothetical victims of hypothetical crimes. This "exchange" of the l i f e of the criminal for the lives of as yet undetermined others is what makes the question of deterrence such a d i f f i c u l t one.

I t also suggests the way in which

questions of morality and u t i l i t y merge in considering death as a punishment.

I t is indeed no accident that they should do so.

Although ques-

tions of morals cannot generally be resolved by a utilitarian calculus, the constitutional ban on punishment which is,"cruel and unusual" requires the examination of both and suggests that the constitutionality of capital punishment depends, in some respects, on the way questions of the deterrent efficacy of death as a punishment are answered. The relevance of deterrence to the constitutionality of capital punishment is also a function of the special nature of the death penalty. Deathas a punishment is qualitatively different from any other type of punishment which the state might impose. Even the incarcerated felon is a11owed to retain basic human rights and a substantial, albeit diminished, set of basic legal rights (26).

The individual who dies at the hands of

the state quite obviously is deprived of all of his rights.

The fact

that i t is the state which is the author of such deprivation is of no l i t t l e significance.

I t means that constituted political authority is

315 turned from at least the theoretical

protector of the lives and rights

of all of its citizens to the protector of some at the expense of others. Furthermore, death is unique in the amount of physical and mental suffering which i t imposes and in its f i n a l i t y (25, p. 17). The severity and f i n a l i t y of capital punishment requires that special attention be given to its justifications.

I f there is any one claim which exerts

a pull in the direction of sympathy for capital punishment in spite of its severity and its impact on the relation of citizens and the state, i t is the claim that death as a punishment may help save innocent lives. Yet there are some who would like to dispense with the question of deterrence in arguing for or against capital punishment. Somewould do so because of its complexity or because i t introduces the problem of ascertaining facts "scientifically" or because they think i t inevitably and improperly expands the discussion to one in which the propriety of any punishment may be called into question (11, 35).

In a recent article

Professor George Schedler suggested that the entire issue of deterrence is fundamentally out of place in considering the constitutionality of the death penalty (32a, 32b). For him the central issue is one of justice, that is, whether anyone can ever deserve to die at the hands of the state.

To introduce deterrence as an issue is, according to Schedler,

to deflect attention from the basic moral and legal issue. The intention of this paper is to suggest that the view of Schedler and others like him is shortsighted in t h a t i t fails to recognize the close connection which exists between the issue of deterrence and the justice, morality and constitutionality of capital punishment (38).

316 The error of those who dismiss the deterrence debate is to assume that the only moral issue relevant to capital punishment is one of retribution.

Retribution as a j u s t i f i c a t i o n for punishment generally

and for the death penalty in particular has come under severe criticism. As Marshall noted in Furman v. Georgia, the Supreme Court has, in recent years, "consistently denigrated retribution as a permissible goal of punishment" (10, p. 344; 1).

This is not to say that the basic principle

of retributive justice, that only the guilty be punished, is under constitutional attack (27).

Yet, this minimal understanding of retribution

is not what is at issue in discussions of the death penalty.

What is at

issue and is under attack is the idea that the death penalty may be j u s t i f i e d as necessary to prevent the outbreak of private vengeance or because the murderer deserves to die.

Although some justices would

argue for the validity of one or both of these retributive propositions none would hold that they alone are enough to j u s t i f y the imposition of death as a punishment. The issue of morality which remains important in a constitutional sense is the ~uestion of whether the death penalty may be cruel even i f i t is deserved.

I t is to this issue that evidence on

deterrence is relevant. The sections that follow will briefly review and categorize the state of social science evidence on the deterrent effects of capital punishment. The literature is vast and the intention is not to provide a comprehensive survey but simply to suggest the kinds of approaches and conclusions which are characteristic of the most prominent of such work. Subsequently four of the most important recent cases on the

317

constitutionality of capital punishment will be examined. The purpose of this review and examination is to answer three questions:

(I) Of

what relevance is the question of deterrence to the problem of determining the constitutionality of death as a punishment?

(2) How has social

science evidence informed the thinking of those justices who acknowledge its relevance?

(3) What conclusions have they drawn about the capacity

of the death penalty to deter? Finally, an explanation of why and how the question of deterrence has been treated as i t has and the consequences of its treatment in constitutional litigation in light of two different understandings of the limitations imposed by the constitutional prohibition of cruel and unusual punishment will be presented. THE NATUREOF EVIDENCE Research on the deterrent capacity of the death penalty has often suffered the handicap of beginning with the wrong question. Discussions of capital punishment have frequently asked whether the threat of death by execution or the incidence of actual executions deters people from committing capital crimes. This is no different than asking whether any punishment has a deterrent effect and whether that effect increases with the severity of the punishment. The truly important issue, and the one which is at stake in discussing the place of deterrence in constitutional litigation, is whether the threat of death is a significantly greater impediment to the commission of capital crimes than the threat of long imprisonment. This way of setting the question indicates that the model for research on the deterrent effect of capital punishment would be a :ontrolled experiment (43).

This "unimaginable" procedure would randomly

318 separate the population into two groups. Membersof the f i r s t group would receive a l i f e sentence i f they should ever be convicted of a capital crime; members of the second group would be guaranteed the death penalty.

Randomassignment is necessary in order to insure that

all other factors associated with the commission of capital crimes are equalized in each group. The only thing differentiating these groups in terms of their propensity to commit such crimes would be the threat of different kinds of punishment. Within each of these groups of people there is likely to exist what might be called a "spectrum of deterrability" (32a, p. 48).

At one end

of this spectrum are people who would commit the crime regardless of the penalty; there is no punishment which is severe or immediate enough to inhibit or prevent them from committing a capital crime. Included in this group would be the large number of "irrational" murderers and those who commit crimes of "passion" (7, p. 707).

At the other extreme

there are some people who would be deterred by almost any punishment. For them the death penalty is unnecessarily severe i f all one is concerned about is its efficacy as a deterrent.

The important research issue

is whether there is an intermediate group who are deterred by the increment of severity which the death penalty adds to l i f e imprisonment.

In

order to determine whether such a group existed i t would be necessary to insure that the death penalty was mandatory and that the possibility of escaping or postponing execution through appeal or executive clemency was minimized.

To achieve maximum deterrence in the experiment one would

have to insure that the imposition of death sentences received

319 maximum publicity.

I t would be necessary to recognize the tradeoff

between maximizing the deterrent effect of the death penalty and increasing the chance for error.

Execution of the undeserving would, in

the course of the experiment, not necessarily have any i l l

effects on

the number of people deterred. The impossibility of conducting such an experiment has led some to conclude that social scientists w i l l never be able to generate reliable data on the question of deterrence. that "

Charles Black, for example, argues

after all possible inquiry .

. we do not know, and for

systematic and easily visible reasons cannot know, what the truth about the 'deterrent' effect may be . . . .

A ' s c i e n t i f i c ' - - t h a t is to say,

a soundly based--conclusion is simply impossible and no methodological path out of this tangle suggests i t s e l f " (5, pp. 25-26).

This is a sig-

nificant argument and has been cited in the opinions of several Supreme Court justices.

Yet Black's pessimism about the possibilities of gener-

ating reliable data has not been shared by others.

Notwithstanding the

impossibility of implementing the "ideal" research design there is ample social science evidence, evidence generated with varying levels of rigor, which confronts judges called upon to decide on the constitutionality of capital punishment. There are four primary research strategies which have been employed in attempts to determine whether the death penalty is a more effective deterrent than l i f e in prison.

They vary considerably in t h e i r theoreti-

cal and methodological sophistication. is the "dichotomous comparative" design.

The f i r s t and simplest approach That design, which is the

320 basis of the early, well known research by Thorsten Sellin, takes two forms (43, p. 322). First i t takes the form of before/after comparisons of the murder rate in states which had abolished the death penalty. The logic of the design was straightforward--if the death penalty is a more effective deterrent than l i f e in prison then the removal of execution as a possible penalty ought to be associated with an increase in the commission of capital crimes. The second form of the dichotomous comparative design involves a comparison among States, some of which have capital punishment and sDme of which do not.

In some of these studies

comparison has been limited to geographically contiguous states, the assumption being that these states are more likely to share other conditions that might independently affect the murder rate (33).

However, none

of these studies rigorously controlled these extraneous variables.

As a

result, their general conclusions--that the absence of a statutory provision for the death penalty is not associated with a higher murder rate-is open to question and challenge. The second type of deterrence study seeks to overcome the problem of controlling extraneous variables by altering the unit of comparison (34, p. 520). Instead of comparing entire states some research has examined mere homogeneous subsections or communities of geographically contiguous states.

This more narrow form of comparison has produced no

significant alterations in the findings of dichotomous comparative studies. I f altering the unit of comparison is not the answer to establishing that the death penalty deters, then perhaps an alteration in the definition of the dependent variable is what is required.

In a third type of

321 deterrence research the actual number of executions is substituted for the statutory presence or absence of the death penalty.

I t is argued

in such research that the extent of the threat of execution cannot be determined precisely i f all that is considered is what the statutes say (43, p. 328).

The threat of execution is, in fact, a function of the

number of people executed for committing a certain crime in relation to the number of such crimes which are committed.

In at least two

studies an attempt was made to determine what was the response to the occurrence of well publicized executions.

One study looked at the murder

rate in Philadelphia during the eight weeks before and after such executions (31, p. 338).

I t reported no significant before/after d i f f e r -

ences. The other, a study conducted in California, reported that the murder rate declined in the days immediately preceding an execution and increased in the days following i t (14).

Despite problems in its design,

the California study, as well as others of its type, lends no support to the deterrence hypothesis. A fourth type of deterrence research also focuses on actual executions. However, unlike the California and Philadelphia studies, this research employs national data over an extended period of time.

The f i r s t , and

most controversial, study of this type, by Isaac Ehrlich, examined the number of executions and the murder rate throughout the entire United States during the years 1933 through 1969 (8, p. 397).

Using multiple regression

techniques Ehrlich sought to.isolate the effect of the former on the l a t t e r and, at the same time, to control for the influence of other variables, e.g., the conviction rate for murder suspects, and the unemployment rate.

322 He found that there was indeed a s t a t i s t i c a l l y significant relationship between executions and murder rates and he argued that increases in the former are associated with decreases in the latter. Given the importance of Ehrlich's application of advanced s t a t i s t i cal techniques to the problem of deterrence, as well as the nature of his conclusions, an impressive critical literature rapidly appeared. Some, substituting more precise measures of the "deterrence function," have drawn conclusions similar to Ehrlich's (42).

However,most of the

attempted replications of Ehrlich's work have raised questions about his findings.

Altering the time frame within which the analysis is carried

out appears to seriously alter the findings.

Thus, Passell and Taylor,

for example, suggest that Ehrlich's findings fail to hold up when the years after 1962 are l e f t out of the regression equation (23).

Employing

differing variants of regression analysis also seems to produce different results (7).

What these kinds of criticisms attempt to demonstrate is

that Ehrlich's findings are themselves artifacts of a very narrow set of theoretical and statistical assumptions and are, thus, unreliable and insufficient to provide a "scientific" proof that the death penalty deters. None of the four types of research which characterize social science investigations of the deterrent effect of the death penalty is able to come close to providing the rigor of the unimaginable controlled experiment. Each suffers from flaws in design or execution. questions.

Each raises new

Each presents even the well trained social scientist with

d i f f i c u l t problems of interpretation.

Together they provide the basis

upon which judges have had to rely i f they were to incorporate the

323 deterrence debate into their consideration of the legality of death as a punishment. The complexity and subtlety of that debate poses substantial problems to such judges and is i t s e l f a significant factor in explaining the way in which the evidence on deterrence has been employed in l i t i g a t i o n and judicial opinions. DETERRENCE AND THE CONSTITUTIONALITY OF CAPITAL PUNISHMENT Much of the mass of statistical evidence accumulated by social science research on deterrence was collected for the specific purpose of contributing to judicial considerations of the constitutionality of capital punishment. Yet not before 1972 did that issue reach the United States Supreme Court (10).

Prior to that time the Court had occasion

to deal only with questions of procedure and administration in the adjudication or execution of death sentences (39).

In the 1972 case, Furman

v. Georgia, the question of the compatibility of capital punishment and the 8th amendment's prohibition of cruel and unusual punishment was put before the Court yet the Court did not squarely resolve i t .

Instead i t

continued to direct its scrutiny to the way the death penalty was administered and applied.

Following Furman new litigation was initiated which

challenged attempts by various states to remedy the constitutional defects pointed out by the 1972 majority.

In a series of recent decisions the

Court has resolved some of the questions l e f t unanswered in Furman and has clearly asserted the constitutionality of capital punishment for the crime of murder (15).

While there are s t i l l questions as to whether the

death penalty can be made mandatory for certain offenses and as to the

324

way i t is administered, the compatibility of capital punishment and the 8th Amendment has been directly, i f not permanently, addressed. What role has the question of deterrence played in constitutional litigation concerning the death penalty? This question will be discussed by examining four of the most important recent cases on the constitutionality of capital punishment. These cases, two decided by the United States Supreme Court and two at the state level, have been selected because each marked a significant turning point in the history of death penalty litigation, and in each, one or more of the judges addressed the question of deterrence and its relevance.

Each also

provides a case study of the way in which social science evidence informs the adjudication of constitutional issues. People v. Anderson (24) The f i r s t of these cases was decided by the California Supreme Court j u s t prior to the Furman decision in 1972. Robert Anderson, having been convicted of murder and sentenced to death, f i l e d a writ of habeas corpus alleging, among other things, that the death penalty violated the state and federal constitutions.

The Court rejected that claim but found other

grounds for reversing his conviction and i t remanded his case for a new trial.

Again convicted and sentenced to death Anderson appealed.

Recon-

sidering i t s earlier decision the California Supreme Court ruled that under the language of the state constitution the death penalty was invalid. That language, unlike the language of the 8th Amendment to the federal constitution, rejects punishments which are cruel o__~runusual. However, the Court found that the death penalty was both cruel and unusual in the

325 way i t is applied (24, p. 871). Applying the language of Trop v. Dulles (36, p. 101) the California Court argued that the cruelty of a punishment is properly judged against "evolving standards of decency" and found the steady decline in the imposition and carrying out of the death penalty to be evidence that "capital punishment is unacceptable in society today" (24, p. 894).

I t concluded that the central constitutional concern to

protect the dignity of man is offended by death as a punishment. What is critical in this case and in others concerning capital punishment is that the Court forced the state to prove that the death penalty was necessary to the achievement of legitimate state interests.

The Court

suggested that the presumptive validity of lesser forms of punishment did not extend to situations in which the state sought to employ death as a punishment. The Court argued that the death penalty might possibly be justified as serving any or all of three legitimate purposes of criminal punishment, namely retribution, isolation and deterrence.

Of the f i r s t ,

the Court argued that although retribution is a legitimate aim of punishment i t could not stand alone as a justification for the death penalty and further that "

. i t is incompatible with the dignity of an enlightened

society to attempt to j u s t i f y the taking of l i f e for purposes of vengeance" (24, p. 896). The equation of retribution and vengeance indicates some confusion in the Court's conception of the former, a conception which is not fully spelled out~ What is most important, however, is not this conceptual confusion, but rather the unstated point that i t is the "taking of l i f e " which makes retribution unacceptable as an exclusive justification. The implicit comparison of the death penalty and other forms of punishment

326 is made explicit in the Court's brief discussion of isolation.

Here

again while the Court recognizes the validity of this purpose i t argues that i t can be properly achieved through means far less "onerous" than execution.

What is at work in this analysis is the idea that the neces-

sity of the death penalty is to be judged by comparing its u t i l i t y with that of other forms of punishment. Where some lesser alternative works to achieve legitimate state interests, the state is disallowed from using death as a punishment. The Court's treatment of the deterrence issue also proceeded within this frame. First, the Court noted that statistical studies can never f u l l y capture the dynamics of social l i f e .

While the Court did not care-

f u l l y scrutinize the methodology of deterrence research, i t did suggest that the d i f f i c u l t y of proving the contrary to fact proposition that so many murders would not have been committed i f executions were employed, makes i t impossible for the state ever to establish a plausible case for the necessity of capital punishment as a deterrent.

Further, the Court

asserted that the state must prove that death has a "substantial" deterrent effect and that the available evidence (1972) could not sustain such a showing (24, p. 896). Finally, the Court suggested that the very extremity of the death penalty may weaken its deterrent capacity by introducing greater caution into capital proceedings. What this means is that the swiftness and certainty which is necessary to achieve a deterrent effe( is impossible to achieve when what is at stake is the l i f e of the criminal On these three grounds the Court found that capital punishment could not be j u s t i f i e d on the basis of its superior deterrent capacity.

327 The majority in People v. Anderson e x p l i c i t l y incorporated the question of deterrence into its determination of the constitutional status of the death penalty.

I t did so by arguing that the cruelty of

death as a punishment was to some extent a function of its necessity and that the latter could only be ascertained in light of the ends which capital punishment is purported to serve.

This means-ends analysis

places a heavy burden on the state, a burden imposed by the particular severity of the death penalty, to assert that its legitimate interests could not be met by other types of sanctions.

By linking the question

of the necessity to the issue of cruelty the Court placed the primary weight of justification on the question of deterrence since neither retribution nor isolation was found to be sufficient.

The "inconclusiveness"

of the social science evidence concerning deterrence served only to weaken the state's claims for the death penalty. The question of deterrence is also treated in the single dissent by Justice McComb. Without reviewing or considering social science research Justice McComb asserted his disagreement with the reasoning of the majority.

Citing as his only evidence the testimony of Judge Schauer in the

1941 case of People v. Love McComb argues that " . . .

the death penalty

serves a useful purpose as a deterrent of crimes which result in the death of innocent victims and should therefore not be abolished" (24, p. 900, note 2).

McComb's resort to the "logic of experience contrasts

with the "hostile skepticism" of the majority's review of social science evidence on deterrence.

Both McComb and the majority accept the l e g i t i -

macy of punishing some to deter others; neither reflects any moral qualms

328

of the use of people as a means of sorting.

Where they d i f f e r is in

t h e i r view of what is necessary to "prove" that the death penalty deters and who carries the burden of proof. Furman v. Georgia (10) Four months after the California Supreme Court handed down its decision in People v. Anderson the United ~tates Supreme Court decided Furman.

In its Furman decision the Court ruled that the "imposition and

carrying out of the death penalty . . . constitutes cruel and unusual .

punishment in violation of the Eighth and Fourteenth Amendments" (10, pp. 239-240).

Each of the nine justices wrote separate opinions and

the case was decided by a five to four margin. The only consistent theme in the five majority opinions involved the issue of the manner in which the death penalty was then administered.

All of the majority justices

agreed that the arbitrary and discriminatory manner in which the penalty was applied, f a l l i n g disproportionately on members of minority groups, violated the 8th amendment. Implicit in their reasoning was the idea that the ban on cruel and unusual punishment derives at least part of its n~aning from the idea of equal protection. wrote that " . . .

Douglas, for example,

the death penalty i n f l i c t e d on one defendant is 'unusual'

i f i t discriminates against him by reason of his race, religion, wealth, social position or class, or i f i t is imposed under such a procedure that gives room for the play of prejudices" (10, p. 242).

What Douglas does

is to identify two elusive constitutional values, equality and cruelty, and import the former to elucidate the l a t t e r .

In so doing he exemplifies

329 what has been called the "analytic" tendency in 8th Amendment cases, that is, the tendency to interpret that amendment in light of other constitutional values (25).

For Douglas the question of deterrence need

not be reached since no matter what the legislative purposes the administration of the death penalty rendered i t constitutionally invalid. The deterrence argument did, however, find its way into the opinions of two other justices who in large part accepted Douglas's analytic interpretation of the 8th Amendment. Justice Stewart, echoing a theme of People v. Anderson, suggested that a punishment is cruel i f i t goes beyond what is necessary to achieve the legitimate purposes of punishment. For him there are two such purposes relevant in a discussion of the death penalty, namely deterrence and retribution.

As far as deterrence is

concerned, he found the evidence to be inconclusive, but he allowed that the "uncertainty" surrounding the question of deterrence might be resolved i f all other relevant variables could be identified and held constant (10, p. 307, note 7).

Furthermore, Stewart saw a connection between the deter-

rence argument and the concern for the way in which capital punishment was employed. Since i t was so irregularly applied he contended that its deterrent effect could not be reliably ascertained.

Thus, i t is not known, i f

the death penalty deters, but even i f i t were known, the death penalty could not reasonably be employed in such a way as to maximize its 3 deterrent power. 31n order to reach this end one would have to provide for automatic execution, a procedu6e which Stewart rejects for other reasons.

330 Stewart's opinion presents a defense of retribution as a legitimate j u s t i f i c a t i o n even for the death penalty.

In his view i t is not demeaning

or incompatible with the 8th Amendment's concerns for human dignity. However, the very fact that the statute at issue in Furman allowed a jury to impose a penalty less than death in rape and murder cases was, for Stewart, conclusive evidence that the legislature i t s e l f did not consider death as a punishment necessary to achieve a r e t r i b u t i v i s t result.

Thus,

even granting the legitimacy of retribution, the 8th Amendment's mandate that the state not impose a punishment more severe than is necessary to produce such a result could not be met given the facts of Furman. Although he employs no social science evidence, the question of deterrence was for Justice White c r i t i c a l in judging the c o n s t i t u t i o n a l i t y of death penalty l e g i s l a t i o n that delegated to judges and juries the discretion to impose death as a punishment. White wrote in Furman that i t is neither immoral nor impractical to punish for deterrent purposes (10, p. 312). What disturbed him was the connection between the infrequency and unpredictability of the application of capital punishment and i t s capacity to deter.

In his view the method of i t s administration made i t

impossible for capital punishment to be an effective deterrent and thus weakened i t s moral and constitutional j u s t i f i c a t i o n . a punishment which i s , on i t s face, cruel may s t i l l serves valid social ends.

White suggested that be acceptable i f i t

I f i t ceases to achieve those ends i t becomes

constitutionally suspect. Speaking about the death penalty, White stated that given the infrequency of i t s use further imposition, " . . . Would thenbe the pointless and needless extinction of l i f e with only marginal

331 c o n t r i b u t i o n to any d i s c e r n i b l e social or public purposes.

A penalty

with such n e g l i g i b l e returns to the state would be patently excessive and cruel and unusual punishment v i o l a t i v e of the Eighth Amendment" ( i 0 , p. 312).

For White, as for Stewart, the death penalty could not

be e f f e c t i v e as a technique of social control unless i t is imposed in a frequent, regular and predictable manner.

The question of deterrence

cannot be f i n a l l y resolved u n t i l the equal protection problems are remedied.

The approach of Stewart and White was to use deterrence e v i -

dence c o n d i t i o n a l l y , to argue that certain knowledge about i t s deterrent power could not be obtained unless the death penalty were made mandatory for c e r t a i n crimes.

Unless l e g i s l a t i v e action were taken to achieve such

a r e s u l t , they were u n w i l l i n g to allow that the l e g i s l a t u r e could reasonably impose the death penalty f o r purposes of deterrence. Another approach to the problem of determining the c o n s t i t u t i o n a l i t y of capital punishment is found in the Furman opinions of Justices Brennan and Marshall.

For neither of these j u s t i c e s was the central question the

inequitable manner in which death sentences were imposed.

Both concentrated

on the central "normative" issue of the c o m p a t i b i l i t y of death as a punishment and the p r o h i b i t i o n on cruel and unusual punishment.

Brennan argued

that the major purpose of the 8th Amendment is to insure that even convicted criminals are accorded c i v i l i z e d treatment, that even as i t imposes criminal sanctions, the state acts in such a way as to respect the d i g n i t y of the i n d i v i d u a l being punished.

Punishments which do not comport with

human d i g n i t y are, according to Brennan's i n t e r p r e t a t i o n , cruel and unusual ( I 0 , p. 271).

He put forward a four part t e s t to determine whether

332 a punishment offends against the 8th Amendment's concern for dignity. The issue of deterrence is one element in that test. Punishments which are incompatible with human dignity are those which, f i r s t , impose dramatic physical or psychic pain, second, those which are imposed a r b i t r a r i l y , third, those which are unacceptable to contemporary society; and f i n a l l y , those which are excessive, that is, unnecessary because some less severe punishment would accomplish the same penal objectives (10, p. 279).

The fourth and final of these tests

provides the occasion for Brennan's discussion of deterrence.

This

fourth test requires that the state in choosing how to achieve its goals choose the least severe alternative.

As Brennan says, " I f there is a

significantly less severe punishment adequate to achieve the purposes for which punishment is i n f l i c t e d . . . the punishment is unnecessary and therefore excessive" (10, p. 279). Brennan noted that the primary theoretical j u s t i f i c a t i o n for capital punishment is i t s a b i l i t y to deter the commission of capital crimes more effectively than l i f e imprisonment. Referring to social science research Brennan concluded that available evidence indicates that the "threat of death has no greater deterrent effect than the threat of imprisonment" (10, p. 301).

His conclusion is based upon the analysis found in Justice

Marshall's opinion.

However, unlike Marshall he tries to l i m i t the scope

of the deterrence argument by suggesting that i t is primarily, i f not exclusively, relevant to the "rational person."

This reflects a rather

narrow understanding of the way in which deterrence works and a f a i l u r e tounderstand that punishment may act as a conditioning mechanism which

333 does not require the intervention of the rational mind. Finally, he hypothesizes that even i f the death penalty were an effective deterrent, inhibitions about allowing the state to take lives insures that capital punishment would never be applied so certainly and swiftly as to pose a realistic and credible threat.

On all of these counts Brennan finds

death as a punishment to be excessive because i t is unnecessary. Marshall begins his Furman opinion by reviewing a variety of possible interpretations of the constitutional prohibition against cruel and unusual punishment and, like Brennan, finds the prohibition of excessive penalties to be among its meanings.

He observes that the 8th Amendment includes

protections against "excessive bail" and "excessive fines" and reasons that the thrust of the entire amendment is, " . . .

against 'that which is

excessive'" (10, p. 332). Marshall believes that the death penalty would be shown to be excessive i f , " . . .

less severe penalties would satisfy

the legitimate legislative wants as well as capital punishment" (10, p. 342). He then considers six purposes which might, in theory, be served by the death penalty, one of which is deterrence. In his review of the evidence on deterrence Marshall f i r s t acknowledges that the main issue, namely how many murders would not be committed i f the death penalty were regularly employed, can never be certainly known. However, he recognizes that there are two ways in which the question of deterrence can be treated. "logical" evidence.

The f i r s t is on the basis of what he calls

I t largely consists of the persuasive argument that

since most people fear death above all else then death as a punishment must be an effective deterrent to crime. The second, or "statistical," type of evidence was at the time of the Furman decision almost uniform

334 in suggesting that capital punishment is no more effective than l i f e in prison.

He pays particular attention to the work of Sellin and dichotomous

comparative deterrence research as well as to the before/after studies of well publicized executions.

He concludes, "Despite the fact that aboli-

tionists have not proved nondeterrence beyond a reasonable doubt, they have succeeded in showing by clear and convincing evidence that capital punishment is not necessary as a deterrent to crime in our society.

This

is all they must do" (10, p. 353). Marshall's argument is carried on at several levels.

On the f i r s t ,

he finds the deterrence argument to be relevant to the determination of the constitutionality of capital punishment. Unlike Stewart and White he believes that the question of deterrence is relevant in determining the constitutionality of the penalty no matter how i t is administered.

Second,

while he finds the s t a t i s t i c a l evidence problematic he believes that all that is necessary is to call into question the deterrent capacity of the death penalty and he finds in available social science research enough to raise such doubts.

Third, he dismisses the logical evidence on the ground

that even i f men fear death they must weigh potential penalties prior to committing offenses and he believes that potential criminals are unlikely to do so.

Like Brennan he ignores the general conditioning effects of

punishment. .Finally, he relates deterrence to the constitutionality of capital punishment by considering its necessity in relation to other punishments.

He employs the evidence in this way because, as he under-

stands i t , the 8th Amendment's concern for human dignity forbids the state from imposing excess pain.

335

The w i l l i n g n e s s of the j u s t i c e s to consider the necessity of the death penalty is the lynchpin in connecting deterrence and the 8th Amendment, but such a connection is not one with which a l l feel comfortable.

Some of the j u s t i c e s believe that the question of necessity

puts the courts in the position of second guessing the r a t i o n a l i t y or wisdom of l e g i s l a t i v e judgments, and they question the legitimacy of so doing.

Two of the dissenting opinions in Furman, one by Chief Justice

Burger and the other by Justice Powell, question using deterrence to determine the c o n s t i t u t i o n a l status of the death penalty as well as express doubts about the way social science evidence was interpreted in the various concurring opinions. Burger's opinion is based on the premise that the p r o h i b i t i o n s of

the 8th Amendment serve to l i m i t only punishments which are "tortuous and inhuman" and that they do not provide a standard for invalidating punishments on the basis of their success or failure in achieving their intended effects (10, p. 391).

The question of deterrence is in his view

properly a legislative not a judicial concern.

Speaking of the 8th

Amendment Burger says, "The Constitutional provision is not addressed to social u t i l i t y and does not command that enlightened principles of penology always be followed" (10, p. 394).

He finds i t unnecessary

therefore to engage in an extensive review of the evidence on deterrencce; instead, he simply notes the uncertainty surrounding the question.

He does,

however, address himself to the burden of proof problem and, in so doing, rejects the approach of People v. Anderson which places the burden of proving the necessity, and therefore the deterrent capacity, of the death

336 penalty upon the state.

For him the danger is that such an approach

w i l l require the courts to substitute their judgments about the nature of social science evidence for that of the legislature.

As he puts i t ,

I f i t were proper to put the states to the test of demonstrating the deterrent value of capital punishment, we could just as well ask them to prove the need for l i f e imprisonment or any other punishment. Yet I know of no convincing evidence that l i f e imprisonment is a more effective deterrent than 20 years imprisonment or even that a $10 parking ticket is a more effective deterrent than a $5 parking ticket. In fact there are some who go so far as to challenge the notion that any punishments deter crime. I f the states were unable to adduce convincing proof rebuting such assertions does i t follow that all punishments are suspect as being "cruel and unusual" within the meaning of the Constitution? On the contrary I submit that the questions raised by the necessity approach are beyond the pale of judicial inquiry under the 8th Amendment (10, p. 396). Burger rejects the necessity approach because i t seems to him to go beyond the plain language of the 8th Amendment. However, his analysis is i t s e l f quite problematic.

That analysis is based on the assumption that

the death penalty is no different in kind from other forms of punishment. Thus he speaks about the debate over the deterrent capacity of the death penalty as analogous to the deterrent capacity of different kinds of t r a f f i c fines.

He rejects Brennan's contention that imposing death as a

punishment is a fundamentally different act on the part of the state, an act which is not comparable to deprivations of property or even l i b e r t y . Further, what is at issue is not simply the question of deterrence but rather evidence as to whether capital punishment is excessive.

There is

a vast difference between assertion and evidence which Burger chooses to ignore.

By removing evidence about deterrence from constitutional con-

troversy Burger seeks to uphold the death penalty in the name of judicial restraint and, at'the same time, to force the debate over the

337 constitutionality of capital punishment to attend to the provisions of the Constitution which seem to acknowledge the permissible uses of death as a punishment.4 His approach is to s t r i c t l y limit the scope of the 8th Amendment and to deny that its prohibition of cruel and unusual punishment is analogous to a "due process of punishment" (6).

His desire

is to grant to the states the maximum possible leeway in deciding how to deal with the crime problem and reflects his acceptance of "crime control" values (21). Powell's Furman dissent also embodies these values.

He begins by

rejecting the idea that the 8th Amendment allows the courts to invalidate punishments on the basis of their comparative efficacy and he argues that while considerations of excessiveness may properly be a part of 8th amendment adjudication, such considerations have to do with the relation between crime and punishment rather than between punishment and punishment aims (10, p. 451). Further, in his view, even i f such means/ends concerns were germane, the burden of proof would rest with those seeking to overturn a legislative judgment. Having, in effect, dismissed the question of the purposes of capital punishment, Powell unexpectedly considers two such purposes--retribution and deterrence.

Of the former Powell writes

that the Supreme Court has never found i t to be an impermissible basis for punishment (10, p. 452). While he finds i t unattractive, he accepts the argument that retribution serves to promote social stability by 4The explicit language of the Constitution which seems to allow the use of capital punishment is exemplified in the 5th and 14th Amendments which regulate the procedure which must be followed when the state seeks to deprive an individual of " l i f e . "

338 preventing private vengeance. Turning to deterrence, Powell acknowledges that statistical studies have generally called into question the efficacy of death as a punishment. However, in his view the opponents of the death penalty have not met the burden of proving that the legislature's imposition of that punishment is without justification.

Powell thus fascillates

between a position in which deterrence is simply an irrelevant issue and one regarding the important issue as one of who has to prove, and at what level, that the death penalty does or does not deter. Commonwealth

v.

O'Neal

(9)

Following Furman many states redrafted their death penalty legislation in an attempt to remedy the constitutional defects identified in that case. These new statutes gave rise to another round of l i t i g a t i o n in which both the death penalty i t s e l f and the manner of its application were challenged. Two of the most important of these challenges occurred approximately three years after Furman. The f i r s t was decided by the Supreme Judicial Court of Massachusetts. The case, Commonwealth v. O'Neal, arose from a rape-murder conviction and subsequent death sentence. The Massachusetts Court in a per curiam order ruled that the imposition of a mandatory sentence of death in rape-murder cases constituted cruel and unusual punishment under the state constitution. The main concurring opinion by Chief Justice Tauro displays an "analyt i c " interpretation of the cruel and unusual prohibition.

The constitu-

tional value which Tauro argues gives meaning to that phrase is contained in the guarantee of due process. These two concepts are "'so close as to merge'" (9, p. 677). The importance of this union of constitutional

339 guarantees is that i t allows Tauro to impose on the state the same burden of proof that is imposed on i t in cases involving an alleged infringement of due process. Citing a variety of state and federal cases he argues that a statute challenged on due process grounds must be shown to serve a "compelling state interest" and, further, must be shown to be the least onerous moans of reaching "essential" ends. Tauro argues that what is at stake in death penalty cases is a fundamental right, the right to l i f e , whose protection requires s t r i c t scrutiny of any proposed infringement (9, p. 678).

I t is the right to

l i f e which places the death penalty in a special category and insures that the courts are not placed on the kind of slippery slope feared by Burger in his Furman dissent.

By taking the fundamental right tactic Tauro

leaves himself open to the question of why the liberty which is at stake in other forms of punishment is any less fundamental. Furthermore, his embrace of the language of "fundamental rights" places his opinion foresquare in the tradition of substantive due process. Tauro's opinion picks up and extends the line of argument f i r s t encountered in People v.~Anderson.

He suggests that a penalty is cruel

i f i t involves "'the infliction of pain or loss without necessity,'" (9, p. 679, note 5) and he notes three purposes which might make the imposition of the death penalty necessary: "(1) saving lives (deterrence), (2) protecting citizens from crimes of violence (incapacitation) and (3) ensuring justice and diminishing recourse to vigilantism (retribution)" (9, p. 681). With respect to the second and third he writes that death is not necessary to achieve either, both being equally well served by long prison terms.

340 His consideration of deterrence is more extensive than his examination of the other two goals of capital punishment.

He discusses

the entire range of social science evidence from dichotomous comparative studies to the advanced statistical work of Ehrlich.

Dichotomous com-

parative and before/after studies which question the efficacy of the death penalty are cited without comment. On the other hand, the work of Ehrlich is found to be inconclusive because of problems in its, " . . methodology, the use of arbitrary assumptions regarding the mathematical form of relations among the variables, the sensitivity of the model to minor statistical variation and the failure to take into consideration the interdependence of relevant variables" (9, p. 684, note 15). Finally, Tauro looks at the problem which bothered Justices Stewart and White, namely the problem of assessing the deterrent effect of capital punishment where i t is imposed in a discretionary and irregular fashion. Relying on research by William Bowers, research which analyzed homicide rates in states which changed from mandatory to discretionary death penalty legislation, Tauro notes that there is no evidence that the regularity or predictability of its administration significantly affects the efficacy of capital punishment as a deterrent (9, p. 683).

He concludes by arguing

that there are no grounds for believing that the state's interest in saving lives by deterring capital crimes cannot be served adequately by penalties less severe than death.

On grounds of deterrence alone the

state thus fails to prove that capital punishment is, " . . .

the least

restrictive means toward furtherance of a permissible goal" (9, p. 681).

341 The dissenting opinions in this case present a dramatically different view of the prohibition of cruel and unusual punishment and the question of deterrence.

Justice Reardon, for example, citing

Burger, contends that the only relevant concern in cases challenging the constitutionality of the death penalty is whether death as a punishment is barbaric or inhuman. The cruelty of a punishment cannot, he writes, be judged in relation to i t s ends.

To do so is to abandon the

specific language of the Constitution in favor of judicial notions of the rationality of legislative actions (9, p. 701). His harshest c r i t i cism is directed at Tauro's attempt to merge due process and the constitutional ban on cruel and unusual punishment by a r b i t r a r i l y designating l i f e as a fundamental right.

Rejecting this line of argument he states

that any inquiry into legislative purposes in choosing particular punishments for particular crimes is inappropriate.

To consider evidence about

the deterrent capacity of the death penalty is to require judges to make complex factual calculations which Reardon argues are best l e f t to legislatures.

His position, simply put, is that the burden may not f a i r l y be

placed on the state to j u s t i f y its choice of punishment and, furthermore, that the courts ought not to rely on questionable social science evidence in deciding on the constitutionality of that choice. Gregg v. Georgia (15) In 1976, the United States Supreme Court f i n a l l y faced the question of whether capital punishment is cruel and unusual per se.

I t did so in

the context of several cases, one of which was brought by an individual

342

convicted of robbery and murder and sentenced to death under a Georgia statute specifically designed to remedy the Furman defects.

The Court

ruled 7-2 that the punishment of death for murder is not a per se violation of the 8th Amendment, that retribution and deterrence are permissible factors in legislative choices of penalties and that the Georgia statute was constitutional. Justice Stewart writing the plurality opinion carried forward the "analytic" approach which he developed in the Furman apinion.

Examining

the particular Georgia statute he found that Georgia's legislation had, in fact, remedied the qualities of arbitrariness and discrimination which he had previously found to be problematic. Stewart then moved to consider the question of how the 8th Amendment could be used as a standard against which to judge a f a i r l y administered death penalty.

In so doing he

e x p l i c i t l y rejected the argument of Tauro in Commonwealth v. O'Neal that the 8th Amendment merges with the guarantee of due process of law to protect the right to l i f e .

Furthermore, although Stewart continued to argue

that the 8th Amendment does allow scrutiny of the relationship of a punishment and its purposes, he also rejected Tauro's argument that the burden of proof rests with the state.

Echoing Justice Powell's Furman dissent,

Stewart wrote that even i f a variety of penalties might achieve legitimate i

legislative purposes, "We may not require the legislature to select the least severe penalty so long as the penalty selected is not cruelly inhumane or disproportionate to the crime involved" (15, p. 2926). Yet even as Stewart seems to move toward the position taken by Burger in Furman he retreats.

Should a penalty be " t o t a l l y without penological justificatiq

343

i t would, argues Stewart, offend against the concept of human d i g n i t y which is at the heart of the 8th Amendment" (15, p. 2929).

What a l l

of t h i s adds up to is a position which says that the states can be more severe in t h e i r choice of punishments than is required to achieve v a l i d state ends so long as there is some reasonable r e l a t i o n s h i p between the penalty chosen and such ends.

Stewart finds no basis in the 8th Amend-

ment f o r preventing the state from imposing surplus pain so long as there is some basis f o r i n f l i c t i n g

any pain at a l l .

His opinion examines two such bases. R e t r i b u t i o n , he acknowledges, i s , "

The f i r s t

is r e t r i b u t i o n .

. no longer the dominant objective oi

the criminal l a w , ' " (15, p. 2930) but i t

is not at the same time forbidden.

The second basis f o r punishment is deterrence.

Stewart examines a wide

range of social science research c h a r a c t e r i s t i c s of what he c a l l s the "debate" about the deterrent e f f e c t of the death penalty.

He describes

the r e s u l t s of t h i s debate as inconclusive and c i t e s approvingly Charles Black's argument that no research can provide a d e f i n i t i v e answer to the deterrence issue.

Nevertheless, he goes on to indicate his b e l i e f that

in p a r t i c u l a r s i t u a t i o n s , such as "murder f o r h i r e , " the threat of death may have a s i g n i f i c a n t deterrent e f f e c t (15, p. 2931).

Stewart's argument

is i n d i c a t i v e of the way judges.on both sides of the capital punishment question have used social science evidence.

Even when they acknowledge

i t s relevance and take some care in discussing i t s i m p l i c a t i o n s , they r a r e l y feel bound or l i m i t e d by i t .

Stewart f i n a l l y indicates that in

his view the issue of whether the death penalty deters must be l e f t f o r l e g i s l a t i v e determination once i t has been established, as he believes

344

i t has, that the legislature in imposing death as a penalty is not acting without any justification.

For him the way out of judging the adequacy of

that justification is simply to require that some justification be present. His review of the evidence on deterrence is part of his attempt to demonstrate that legislation mandating the death penalty meets such a standard. Brennan and Marshall, in dissent, again raise the higher standard of penological necessity in judging the death penalty.

To allow the state to

impose a more severe penalty even though that penalty is no more useful than a less painful alternative is, in their view, to violate the dignity of the person punished. Both believe that "pointless infliction of excessive punishment" is degrading and incompatible with the 8th Amendment (15, p. 2972). Marshall's opinion again takes up the relation of capital punishment and retribution and deterrence.

In his discussion of the former

Marshall performs the valuable service of untangling two meanings of retribution found frequently entangled in death penalty cases. The f i r s t meaning is what he calls "utilitarian" (15, p. 2976). According to this usage, the death penalty is necessary to prevent private violence and to reinforce basic moral values. Marshall argues that this meaning provides an inadequate basis for justifying the death penalty since imprisonment would satisfy both objectives.

The second, or "pure" meaning, is that

the death penalty is appropriate because, " . . .

taking of the murderer's

l i f e is i t s e l f morally good" (15, p. 2977). This meaning he also finds inappropriate because i t seems to deny the criminal's worth and

345 d i g n i t y - - f o r Marshall, no one can ever deserve to die at the hands of the state.

5

Rejecting retribution as a legitimate j u s t i f i c a t i o n for capital punishment Marshall is l e f t with deterrence.

In his Gregg dissent

Marshall concentrates on the "new" evidence introduced by the Ehrlich study.

He does so because this study was unavailable at the time of

Furman and because he acknowledges i t to be, " . . .

the f i r s t s c i e n t i f i c

study to suggest that the death penalty may have a deterrent effect" (15, p. 2974).

He reviews and describes Ehrlich's findings and his pro-

cedures including his use of multiple regression techniques.

He then

considers the main criticisms of Ehrlich's work, two of which he suggests are especially important.

The f i r s t involves the aggregation procedures

which Ehrlich employed. Marshall contends that by comparing execution and homicide rates on a nationwide rather than on a state by state basis, Ehrlich creates an a r t i f i c i a l portrait of the deterrence effect since executions in one state may parallel a decrease in the murder rate in another where there was no death penalty.

I t is wrong, Marshall notes,

to assume that there can be a nationwide deterrent effect since the provisions for and uses of capital punishment vary substantially among the state 5What Marshall suggests is that even i f we l i m i t our understanding of the 8th Amendment's concern with excessiveness to the problem of proport i o n a l i t y between offense and punishment, then capital punishment may s t i l l be found to be constitutionally suspect. To execute a convicted criminal already in the hands of the state, and thus neutralized, is not the appropriate response to the harm done even in a capital crime. Premeditated execution of even a premeditated murderer seems to Marshall to go beyon the dictates of any proper theory of retribution. This line of argument was suggested to me by George Kateb.

346 The second criticism which Marshall discusses involves the choice of the time series included in the regression analysis.

Citing Bowers

and Pierce, Marshall emphasizes the variability of Ehrlich's results (15, p. 2975). This is enough to convince him that Ehrlich's findings are unreliable.

Thus he concludes that the evidence available at the

time of Furman is not undermined and that on the basis of that evidence the use of death as a punishment is no more effective as a deterrent to murder than is l i f e in prison.

I t is interesting to note the extensive-

ness with which Marshall.mounts his methodological criticism of Ehrlich especially given his continued reliance on the far less sophisticated and equally problematic dichotomous comparative and before/after studies. He does so in order to demonstrate that the state cannot meet what he believes to be its burden in proving that the death penalty deters.

The

way the evidence on deterrence is employed by Marshall and indeed by most other judges is heavily influenced by the way they interpret the evidentiary burdens in capital punishment cases as well as by their own preconceptions of the appropriate conclusions. DETERRENCE AND THE PROBLEMOF CRUELTY Running throughout the opinions in the four cases discussed above are several divergent but f a i r l y consistent positions on the relevance of deterrence to the constitutionality of capital punishment. The f i r s t of these positions, most clearly expressed by Burger in Furman, is that the question of deterrence is of no relevance.

To introduce that question

is to go beyond the proper scope of the 8th Amendment. The second positic

347 accepts the relevance of deterrence in a contingent way. Thus, for Stewart and White in Furman, the evidence on deterrence was subsumed under a more general concern for the regularity and fairness of the manner in which death as a punishment was imposed. The third position argues for the unconditional significance of deterrence.

Among those

who take either the second or third position, the kind of evidence which is employed is highly variable.

Some rely on " s c i e n t i f i c " evidence,

although few feel bound by i t s conclusions; others rely on their own sense of logic or the testimony of those who have had experience in administering the death penalty.

Finally, i t is noteworthy that there is

considerable agreement that the available evidence on deterrence is inconclusive.

I t is this fact as much as any other that induces judges to

move freely from s c i e n t i f i c to unscientific evidence and to assert without fear of contradiction their own individualized notions of the deterrent capacity of capital punishment. The way in which the deterrence question is treated in the various opinions on the constitutionality of capital punishment is largely a function of the meaning which judges assign to the constitutional prohibitions of punishments which are cruel and/or unusual.

Two rather different inter-

pretations frame and shape the use of the deterrence debate.

These inter-

pretations begin with the same underlying premise, namely, that the 8th amendment and similar provisions in state constitutions are designed to protect human dignity and to prohibit the state from acting in an indecent way (19).

Where they diverge is in their understanding of what i t

means to protect dignity and prohibit indecency.

348

The f i r s t , or "narrow," interpretation argues that the constitutional limits on the state's power to punish pertain only to the mode of punishment which the state may impose and not to the procedures which are used to administer i t or to the purposes for which the criminal sanction is imposed.

As Burger contends, "The Amendment (the 8th) does not prohibit

all punishments that the states are unable to prove necessary to deter or control crime. The Amendment is not concerned with the process by which a state determines that a particular punishment is to be imposed in a particular case" (10, ~. 397). The state's power to punish is, according to this view, circumscribed in two ways. First, the state may not employ punishments which are inhuman (41).

Judges who take this position cite as

examples of such punishments "burning at the stake, crucifixion, breaking on the wheel" (18, p. 446). The question which they believe to be central to 8th Amendment adjudication is whether "

. what the legislature has

done, however rationally supportable i t may be, is too offensive to stomach (22, p. 1076). This is reminiscent of the "shock the conscience" formula found frequently in due process adjudication (29).

I t rejects punishments

which are, on their face, degrading or which impose lingering pain. The second standard provided by the narrow view rejects punishments which are "excessive."

Such punishments are understood to be those which

are disproportionate to the offense for which they are imposed. The state is prohibited from imposing punishments which are out of line with either "the mischief caused by the offense" or "the moral gravity of the offense" (40).

There must be rough equivalence between the severity of the punish-

ment and the gravity of the crime. The United States Supreme Court in

349 Weems v. U.S. (37) recognized the proportionality principle as being an integral part of the 8th Amendment.

In that case i t struck down as the

penalty for falsifying official documents 15 years in prison at hard labor, a substantial fine, loss of c i v i l liberties and being under surveillance for l i f e .

I t said that such a punishment was, ".

. cruel in its excess of

imprisonment and that which accompanies and follows imprisonment" (37, p. 377). The method employed to ascertain proportionality was to compare the challenged punishment to punishments employed for more serious crimes and to determine whether the challenged punishment exceeded those other punishments (40, p. 858).

A punishment is unconstitutional

i f i t is

clearly more than is appropriate considering the seriousness of the offense for which i t is imposed. Determining whether a punishment is unconstitutionally severe or disproportionate is, for those who advocate a narrow position, aided by reference to the compatibility of that punishment and "contemporary standards of decency." What this means is that courts in judging particular punishments must consider whether there is any evidence of public antipathy for them or for their application to particular crimes. Constitutional judgments may change as public values change or as the social context introduces new understandings of the seriousness of particular crimes. Once a punishment has been scrutinized as to i t s nature and i t s proportionality, the narrow interpretation suggests that all further inquiry must cease. According to this view the 8th Amendment does not give, the courts any general supervisory role over punishment policy but provides, instead, for a limited oversight role.

Questions of whether any punishment performs

350 certain functions, or of whether those functions are legitimate, or of whether they may be accomplished through other means beyond the reach of the 8th Amendment according to the narrow view. is invoked to warn against such ends/means judging.

Judicial s e l f - r e s t r a i n t The issue of deter-

rence is irrelevant in constitutional adjudication although, as many of the judges who take the narrow position acknowledge, i t may be appropriatel~ considered by legislatures.

The ambiguity of the 8th Amendment's prohibi-

tions and a consequent concern that judges not overstep the bounds of appropriate judicial action provide the backdrop for the narrow position's exclusion of the evidence on deterrence.

6

The second, or "enlarged," interpretation incorporates the provisions of the narrow position and builds on them. The enlarged interpretation add: to those standards concern for the way in which punishments are administere and for the purposes for which punishments are imposed. The questions of severity and proportionality are threshold questions which insofar as the death penalty is concerned have troubled only Justices Marshall and Brennan Marshall has given some indication that he considers capital punishment to be disproportionate even when the crime is homicide. 7

Brennan has been mor

e x p l i c i t in arguing that death as a punishment is both unconstitutionally severe and excessive.

"Death is today an unusually severe punishment,

unusual in its pain, in i t s f i n a l i t y and in i t s enormity . . . .

The cal-

culated k i l l i n g of a human being by the state involves, by its very nature, 6As Packer argues, "One may wonder whether a'constitution that does not enact Mr. Herbert Spencer's 'Social Statics' can f r u i t f u l l y be thought of as enacting Mr. Thorsten Sellin on the death penalty" (22, p. 1079). 7Note 5 supra.

351

a denial of the executed person's humanity" (10, pp. 287 and 290). Others who take the enlarged view do not f a u l t the death penalty as being barbaric or excessive as a punishment f o r homicide. The t h i r d element in the enlarged view is the one which was decisive in Furman. Those who adopt the enlarged view argue that the 8th Amendment requires scrutiny of the way in which punishments are imposed and forbids the imposition of punishment in an a r b i t r a r y or discriminatory manner.

When a punishment is imposed in such a way i t becomes

unusual and therefore c o n s t i t u t i o n a l l y The f i n a l is c r i t i c a l

suspect.

element in the enlarged i n t e r p r e t a t i o n and the one which

in incorporating the question of deterrence involves a deter-

mination of the necessity of a punishment. view argue that the c o n s t i t u t i o n a l limited to p r o p o r t i o n a l i t y ;

Those who adopt the enlarged

concern for excessiveness is not

a punishment is also excessive when i t in-

volves the "unnecessary and wanton i n f l i c t i o n

of pain" (15, p. 2925).

Determinations of the necessity of a punishment, especially capital punishment, in turn involve three subsidiary issues.

The f i r s t

of these directs

attention to the penological purposes served by death as a punishment. As has been pointed out, the j u s t i c e s d i f f e r as to the range and propriety of the various ends of punishment.

Greatest undertainty surrounds the

status of r e t r i b u t i o n with some j u s t i c e s finding i t permissible, i f not c e n t r a l , and others, dismissing i t altogether.

All of the j u s t i c e s who

take the enlarged view accept the propriety of deterrence as a purpose for punishment and some argue that i t is the primary j u s t i f i c a t i o n the i n f l i c t i o n

of the death penalty.

for

352

The second factor in determining the necessity of capital punishment is whether the legitimate ends of the state can be achieved by other means. Those who reject deterrence as a relevant constitutional consideration do so in part in order to avoid this question, for, as Powell argues, they believe that i t is impermissible for a court (includin~ the Supreme Court) to "invalidate a category of penalties because we deem less severe penalties adequate to serve the ends of penology" (10, p. 451) For those who take the enlarged view the death penalty can only be accepte, i f i t is superior to other punishments in securing the ends of punishment. I f i t could be proven, for example, that the death penalty is no more effective in deterring crimes than imprisonment, then those who take the enlarged view would uniformly reject i t .

On the basis of available evi-

dence, proponents of the enlarged view have reached different conclusions. Stewart and White, for example, believe that when i t is administered regularly the death penalty is a more effective deterrent.

Their "switch

in the Gregg case can, to some extent, be explained by their belief that the improvements made by the Georgia statute introduced enough regularity into the administration of capital punishment to insure that its deterrer capacity would be realized.

Other judges, like Brennan and Marshall as

well as Tauro of Massachusetts, believe that the death penalty is no mort effective as a deterrent than imprisonment no matter how i t is administe~ The final element in judgments about the necessity of the death penalty involves the question of who bears the burden of proof.

Those w

take the enlarged view d i f f e r among themselves on this question.

Some,

like Stewart in Gregg, argue that the action of a legislature in imposir

353 a punishment for an offense is presumptively valid and that, " . . .

a

heavy burden rests on those who would attack the judgment of the representatives of the people" (15, p. 2916). Others reverse the burden and suggest that the state must demonstrate that no other punishment will be adequate to secure its goals. The question of who bears the burden of proof is c r i t i c a l given the inconclusiveness of the social science evidence on deterrence.

Such inconclusiveness undermines the abolitionist

case for someone like Stewart and is equally destructive of the retentionist position when the burden is shifted to the state. The issue of necessity in judging the constitutionality of capital punishment seems, as suggested above, to raise problems akin to those raised by substantive due process. Whenjudges call into question the necessity of a statutorily defined penalty they may seem to be focusing on the "rationality" rather than the legality of legislative action (22). There is, however, no necessary connection between an enlarged view of cruel and unusual and the style of judging associated with substantive due process. The enlarged view focuses on necessity as one way to determine i f a punishment breaches the restriction against excessive punishments found to be part of the 8th Amendment. The judge is, in fact, determining whether capital punishment is excessive, not whether i t is rational.

The

legislature may rationally decide that a punishment ought to be imposed but its imposition may s t i l l be unnecessary. This action would not violate substantive due process but i t would, under the enlarged view, violate the 8th Amendment. The problem of substantive due process enters the analysis when i t is asserted, as i t was in Commonwealth v. O'Neal, that

354 there is a "fundamental interest" in l i f e which is at stake and that the state acts unconstitutionally, not because capital punishment is cruel or unusual, but because the state has no "compelling interest" which would j u s t i f y infringing upon that right. The enlarged view is, thus, able to go beyond the narrow view and to include considerations of deterrence without requiring those who subscribe to i t to enter the realm of substantive due process.

By

connecting the questions of necessity and excessiveness the enlarged view suggests the linkage of the issue of deterrence and the constitutional concern for cruelty.

An action is cruel i f i t deliberately and

w i l l f u l l y i n f l i c t s needless suffering on an individual (13).

Stewart

suggests that the court has no role to play in preventing the imposition of excess pain.

He contends that the Constitution does not require

the legislature to choose the least painful punishments (15, p. 2926). The 8th Amendment specifically and the Constitution as a whole provide the grounds for c r i t i c i z i n g the Stewart view. Both aim to minimize the suffering to which individuals may be put at the hands of the state (30). Both require that the courts not be indifferent to the problem of restricting the occasions on which the state imposes such suffering.

To allow

the state to impose excess pain is to threaten the context of limits which is characteristic of constitutional government. To allow the state to employ death as a punishment when there is no clear reason for believing i t to be necessary is to threaten the quality of respect which the state owes to every citizen.

To allow the state to impose excess

pain is to ignore the moral claim which even the most vicious criminal

355 has on the society which condemns him. The state must respect his humanity, and thus recognize his capacity to suffer~ even as i t punishes. To allow the state to impose excess pain is to call into question the very foundation of a constitutional government's claim to legitimacy (26).

As Bentham reminds us, such a government must be "frugal" in

the way i t imposes punishment; punishment which imposes "superfluous and needless pain" is what Bentham calls "infrugal" (3).

To the extent that

i t imposes such pain the state contradicts the commitment to human dignity and decency which is c r i t i c a l

in all 8th Amendment cases. The

narrowness of the narrow view is in its contention that problems of decency have their locus exclusively in the nature of the punishment imposed. The value of the enlarged view lies in its incorporation of the more general concern with the suffering imposed by a punishment and with prohibiting that which is excessive. CONCLUSION The j u s t i f i c a t i o n s and limits on punishment imposed by the Constitution have their roots in the 8th Amendment. Litigation on the constitut i o n a l i t y of death as a punishment addresses i t s e l f to the meaning of that amendment and to its implications for state responses to criminal behavior.

This paper has examined deterrence as a j u s t i f i c a t i o n for capi-

tal punishment and i t s role in resolving the constitutionality of capital punishment.

I t has'also examined the way in which the deterrence debate

has influenced constitutional judgments and the way in which judges have understood social science evidence about deterrence.

What is clear is

that the place accorded such evidence is contingent upon broader views

356 of the nature of the prohibition of cruel and unusual punishment. What is equally clear is that the way judges respond to social science evidence is unpredictable and rarely evenhanded. What has been argued is that the question of deterrence properly plays an important role in resolving the constitutionality of capital punishment i f the courts are to be able to reach the clear constitutional concern with cruelty.

The

issue of deterrence is not simply a question of the efficacy of the death penalty; i t stands as a lynchpin in a general understanding of constitutionalism

and a particular understanding of the 8th Amendment's

prohibition of that which offends against human dignity.

REFERENCES 1.

Atkinson, Max. "Interpreting Retributive Claims," Ethics, Vol. 85, October 1974, pp. 80-86.

2.

Bedau, Hugo. "The Death Penalty as a Deterrent," Ethics, Vol. 80, April 1970, p. 206.

.

.

Bentham, d. An Introduction to the Principles of Morals and Legislation. New York: Hafner, 1948, p. 194. Berkson, Larry. The Concept of Cruel and Unusual Punishment. Lexington: Lexington Books, 1975.

5.

Black, Charles. pp. 25-26.

6.

"Capital Punishment: A Review of Recent Supreme Court Decisions," Notre DameLawyer, Vol. 52, 1976, pp. 261-189.

.

Capital Punishment.

New York: W.W. Norton, 1974,

Chambliss, V/illiam. "Types of Deviance and the Effectiveness of Legal Sanctions," Wisconsin Law Review, 1967, p. 707.

So Coker v. Georgia, 45 LW 4961, 1977. g.

Commonwealth v. O'Neal, 339 N.E. 2d 676, 1975.

10.

408 U.S. 238, 1972.

11.

Gerstein, Robert. "Capital Punishment-'Cruel and Unusual'?: A Retrib u t i v i s t Response," Ethics, Vol. 85, October 1974, pp. 75-79.

12.

Gibbs, Jack. 1975.

13.

Goldberg, Arthur and Alan Dershowitz. "Declaring the Death Penalty Unconstitutional," H ~ ~ Review, Vol/ 83, June 1970, pp. 1773-1819.

14.

Graves, William; "The Deterrent Effect of Capital Punishment in Calif o r n i a , ' i n @he Death P m ~ l ~ in Ame~caj ed. Hugo Bedau. • New York: Doubleday, 1967.

15.

Gregg v. Georgia, 96 S. Ct. 2909, 1976.

C~e,

Pwnis~nent and Deference.

357

New York:

Elsevier,

358 16.

Hart, H.L.A. Punishment and Responsibility. University Press, 1968.

17.

Honderich, Ted. Punishment: The Supposed Justifications. Harcourt, Brace and World, 1969.

18.

In re Kemmler, 136 U.S. 436 at 446, 1890.

19.

Morris, Herbert. "Persons and Punishment," in Human Rights, ed. A.I. Melden. Belmont, Cal.: Wadsworth, 1970.

20.

Mott, Rodney. Due Process of Law. Indianapolis:

21.

Packer, Herbert. The Limits of the Criminal Sanction. Stanford Univ. Press, 1968.

22.

. Vol

New York: Oxford New York:

Bobbs-Merrill, 1926. Stanford, Cal:

"Making the Punishment Fit the Crime," Harvard Law Review, 77, April 1964, p. 1076.

23.

Passell, Peter and John Taylor. "The Deterrent Effect of Capital Punishment," unpublished paper (on f i l e with the author), 1975.

24.

People v. Anderson, 493 P. 2d 880, 1972.

25.

Polsby, Daniel. "The Death of Capital Punishment? Furman v. Georgia," Supreme Court Review. 1972, p. 17.

26.

Procunier v. Martinez, 416 U.S. 396, 1974.

27.

Robinson v. California, 370 U.S. 660, 1962.

28.

Roberts v. Louisiana, 45 LW 4584, 1977.

29.

Rochin v. California, 342 U.S. 165, 1951.

30.

Sarat, Austin. "Constitutionalism in American Politics," Polity, forthcoming.

31.

Savitz, Leonard. "A Study in Capital Punishment," Journal of Criminal Law, Criminology and Police Science, Vol:. 49, 1958, p. 338.

32a. Schedler, George. "Capital Punishment and Its Deterrent Effect," Social Theory and Practice, Vol. 4, 1976, pp. 47-56. 32b. 33.

. "On Punishing the Guilty," Ethics, Vol. 86, 1976, pp. 256-260. Sellin, Thorsten. "Homicides in Retentionist and Abolitionist States," in Capital Punishment~ ed. Sellin. New York: Harper and Row, 1967

359

34.

Sutherland, Edwin. "Murder and the Death Penalty," Journal of Criminal Law, Criminology and Police Science, Vol. 15, 1925, p. 520.

35.

Tao, L.S. "Beyond Furman v. Georgia: The Need for a Morally Based Decision on Capital Punishment," Notre Dame Lawyer, Vol. 51, 1976, pp. 722-736.

36.

Trop v. Dulles, 365 U.S. 86, 1958.

37.

Weems v. U.S., 349, 1910.

38.

Wertheimer, Alan. "Deterrence and Retribution," Ethics, VoI. 86, 1976, pp. 181-199.

39.

Witherspoon v. I l l i n o i s , 391U.S. 510, 1968.

40.

Wheeler, Malcolm. "Toward a Theory of Limited Punishment," Stanford Law Review, VoI. 24, 1972, pp. 838-873.

41.

Wilkerson v. Utah, 99 U.S. 130, 1879.

42.

Yunker, James A. "Is the Death Penalty a Deterrent to Homicide? Some Time Series Evidence," Journal of Behavioral Economics, Vol. 5, Summer 1976, pp. 45-81.

43.

Zeisel, Hans. "The Deterrent Effect of the Death Penalty," Supreme Court Review, 1976, pp. 317-343.