PENALTY

may be a long life in the hardest and most monotonous toil,
without any of its alleviation or rewards—disbarred from
all pleasant sights and sounds, and cut off from all earthly
hope…….?” 39
Decades later, a committee of the British Parliament concluded in
1930 that the relative physical and psychological pains of execution
are far preferable to the slow decay of body and spirit of life
imprisonment:
“A further alternative is to lengthen the sentence
to the limit of life itself. . . . This is a death sentence
where the inevitable end is reached by the imperceptible
stages of institutional decay instead of by
one full stroke.” 40
RETHINKING THE THEORY OF DETERRENCE
The logic of deterrence rests on the principle that persons people
committing these crimes have motivations that influence their consideration
of the possibility of death as a consequence of their act. There is
strong and consistent social science evidence that persons contemplating
murder tend to heavily undervalue the risks of punishment. They
regard punishment as a distant possibility, and not one to be taken seriously.
41 In some instances, the rewards and gratification from murder
outweigh any risks of death, or even the certainty of death itself. 42
Even in places with frequent and well-publicized executions, there
is no scientific evidence that executions deter homicides marginally
more than do lengthy incarceration prison sentences. 43
39 John Stuart Mill, Collected Works, vol. 28 (London, Routledge, 1868), pp. 266-272.
40 Sir Alexander Paterson, Report of the Committee on Capital Punishment (1930), pp. 484-487.
41 See, for example, Kenneth Polk, When Men Kill: Scenarios of Masculine Violence (New York, Cambridge
University Press, 1994).
42 This can be observed both in the high number of people who commit suicide after killing
before being arrested by police, and also in the acts of terrorism that result in certain death by
the attacker. See, Scott Eliason, “Murder-suicide: a review of the recent literature”, Journal of the
American Academy of Psychiatry and the Law Online, vol. 37 (2009): 371-376.
43 Randi Hjalmarsson, “Does capital punishment have a ‘local’ deterrent effect on homicides?”
American Law and Economics Review, vol. 11 (2009), pp. 310-334.
A recent review of the empirical research on deterrence 44 , concluded
that three preconditions of decision-making by criminal offenders
are necessary for deterrence to be effective:
1. Knowledge—Do offenders know and understand the implications
of the law? Do they know which actions are criminalized
and what will mitigate their culpability?
2. Rationality—If so, will they allow that understanding to
determine their conduct?
3. Perceived net cost—If so, are they likely to choose compliance
as the more beneficial option? Is the punishment worth
avoiding? This in turn requires assessment of three concurrent
probabilities: (a) the probability of being caught and convicted,
(b) the likely severity of a sentence, and the marginal increases in
severity for each level of punishment, and (c) the delay in reaching
the final stage of the most severe punishment.
The third precondition raises the most difficult challenges: assuming
rationality in both perception and weighing of risks associated specifically
with execution. In most instances, the risks are remote: Few
murderers are caught, even fewer sentenced to death, and still fewer
actually executed. 45 In the case of drug trafficking, its apparent high
volume suggests that perceptions of risk are realistically low.
For both murderers and drug traffickers, with detection and punishment
uncertain if not unlikely, and with the payoffs of drug trafficking
well exceeding conventional returns, the net cost hurdle is likely to
defeat deterrence. Empirical research has shown that the calculus drug
offenders apply in their decision making renders deterrence simply
a component of their task to be managed and avoided. But it hardly
changes how net costs are evaluated.
There also are personal rewards that alter the rationality of decision
making. Economic necessity, emotional rewards and other non-rational
44 Paul Robinson and John Darley, “Does the criminal law deter?” Oxford Journal of Law, 24 (2004),
p. 173.
45 See, for example, Scott Phillips and Alena Simon, “Is the modern American death penalty a fatal
lottery? Texas as a conservative test”, Laws, vol. 3 (2014), pp. 85-105, doi:10.3390/laws3010085.
96 97