Spring 1997, Volume XII, Number 2 The Death Penalty Purposes of the Death Penalty Dane Archer: In addition to the issues surrounding fairness and racial differences, should we not also be asking questions about the purpose of the death penalty? Austin Sarat: I think that the moral and ethical claims [for abolition] are still there. But the "new" abolition presents itself as a form of legal conservatism -- emphasizing fairness (due process) and equality (equal protection). Dane Archer: The U.S. increasingly appears to be the deviant case with respect to use of the death penalty. Virtually all Western, democratic, industrial societies have embraced abolition and -- if one can safely judge from international media -- citizens of those nations increasingly regard as barbaric America's renewed enthusiasm for executions. More important, the abolitionist nations seem to regard the death penalty as lacking an ethical purpose. Beginning in the 1950s, when abolition swept much of Europe, people began asking if there was any serious evidence that the death penalty accomplished anything other than the death of the executed. In Violence and Crime in Cross-National Perspective (Yale University Press, 1987), my co-author Rosemary Gartner and I searched our archive of international data for any evidence that the presence or abolition of the death penalty had an effect on homicide rates. We concluded that there was no evidence for any form of a deterrence effect. Is it, therefore, time to ask whether the European perspective is valid? Other than vengeance -- not, perhaps, the most laudable basis for law and public policy -- what then is the purpose of the death penalty? This is the question asked of us by other democratic nations. Are we going to avoid answering it? John McAdams: The notion of the U.S. as the deviant case is interesting. When used by opponents of the death penalty, this is simply a variety of the argumentum ad populum. If a majority of nations have ended the death penalty, it must be a bad thing. Ironically, proponents of the death penalty can use the same argument form to claim that since an overwhelming majority of U.S. citizens favor the death penalty, it must be a good thing. Both arguments, obviously, are fallacious. The whole notion of "American exceptionalism" is one saturated with ideological double standards. Among liberals, American exceptionalism in regard to government funding of religious schools, the rights of people accused with crimes, and the activist role of the courts have been applauded. American exceptionalism in regard to gun control, socialized medicine, and the death penalty have been deplored. Among conservatives, of course, the positions have been reversed. Dane Archer: John McAdams' reply is well stated, but I worry that I must not have stated my question clearly, for he misses the main point. The issue is not whether an opinion "head count" shows more nations opposed to the death penalty than in favor of it. The real issue is an empirical question: Where is the evidence that the death penalty deters homicide specifically or violent crime generally? Surely it is incumbent on those who favor executions to show that they are effective, accomplish deterrence, etc.? The burden of empirical proof would seem to lie with the pro-death penalty scholar. In the absence of any consistent evidence for deterrence, are we really satisfied using the death penalty in the U.S. for some reason -- at present unclear to me -- other than deterrence? If so, what is that other reason? John McAdams: I'm a bit surprised to find Dane Archer, in the context of the question of whether the death penalty deters murder, claim that "the burden of empirical proof would seem to lie with the pro-death penalty scholar." If we execute murderers and there is in fact no deterrent effect, we have killed a bunch of murderers. If we fail to execute murderers, and doing so would in fact have deterred other murders, we have allowed the killing of a bunch of innocent victims. I would much rather risk the former. This, to me, is not a tough call. Spring 1997 Issue Home | The Death Penalty: A Scholarly Forum Arbitrariness and the Death Penalty | Race and the Death Penalty Victims and the Death Penalty | Purposes of the Death Penalty Teaching about the Death Penalty | Conclusion and Participants List Unedited Death Penalty Forum ABA Calls for Moratorium | Policy, Statistics, and Public Opinion Multidisciplinary Teaching about the Death Penalty Links Focus on Law Studies Home | Subscribe to Focus | Questions/Ordering Back Issues