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Report No. 262

(i) Empirical Evidence on Deterrent Value of the Death Penalty

4.3.5 One of the methods by which the efficacy of the deterrence rationale is tested, is by empirically establishing that the death penalty has a deterrent effect. After many years of research and debate among statisticians, practitioners, and theorists, a worldwide consensus has now emerged that there is no evidence to suggest that the death penalty has a deterrent effect over and above its alternativ.- life imprisonment.

4.3.6 The debate on the efficacy of deterrence gained momentum with a study by Isaac Ehrlich, which was published in 1975, in which Ehrlich found a "unique deterrent effect" of executions on murders.273 The study claimed that each execution saved up to "eight innocent lives".274 The Supreme Court of India in Bachan Singh cited Ehrlich's research and gave it extensive value.

Bachan Singh v State of Punjab (1980) 2 SCC 684, 717-718 However, many flaws were subsequently discovered in Ehrlich's methodology and assumptions. For instance, one powerful critique of Ehrlich's study revealed that if data from just six years, namely 1963-69 was removed from the larger data set comprising 43 years (1920-1963), the evidence of deterrence disappeared completely.276

273 Isaac Ehlrich, The Deterrent Effect of Capital Punishment: A Question of Life and Death, 65 AM. Econ. Rev. 397 (1975).

274 Isaac Ehlrich, The Deterrent Effect of Capital Punishment: A Question of Life and Death, 65 AM. Econ. Rev. 397 (1975).

276 Peter Passell& John Taylor, The Deterrent Effect of Capital Punishment: Another View, 67 AM. Econ. Rev. 445 (1977).

4.3.7 To review Ehrlich's study and other studies which linked deterrence with the death penalty, a Panel was set up by the National Academy of Sciences in the United States, chaired by (Nobel Laureate) Lawrence Klien. In its Report, submitted in 1978, the Panel concluded that "the available studies provide no useful evidence on the deterrent effect of capital punishment" and "research on the deterrent effects of capital sanctions is not likely to provide results that will or should have much influence on policy makers."277

277 Lawrence R. Klein, Brian Forst & Victor Filatov, The Deterrent Effect of Capital Punishment: An Assessment of the Estimates, in Alfred Blumstein, Jacqueline Cohen and Daniel Nagin (eds.), Deterrence And Incapacitation: Estimating The Effects of Criminal Sanctions on Crime Rates, National Academy of the Sciences, Washington D.C. (1978). See also: l S. Nagin And John V. Pepper (Eds.), Deterrence And The Death Penalty, Committee on Deterrence And The Death Penalty (Committee on Law And Justice), National Research Council (2012).

4.3.8 Donohue and Wolfers provided a compelling critique of studies that claim that capital punishment has a deterrent effect.278 They reported that the homicide rates in the US and Canada (culturally and socio-economically similar areas), had moved in "virtual lockstep while approaches to the death penalty [had] diverged sharply since 1950."

Similarly, the movement in homicide rates of all the death penalty and non-death penalty states within the United States (between 1960 and 2000) was also found to be virtually the same.279 Thus, they concluded that it is very difficult to find evidence of deterrence in pure homicide comparisons over time and place.

278 John Donohue and Justin Wolfers, Uses And Abuses of Empirical Evidence In The Death Penalty Debate, 58 Stan. L. Rev. 791 (2005); See also Daniel S. Nagin and John V. Pepper (eds.), Deterrence And The Death Penalty, Committee on Deterrence and the Death Penalty (Committee on Law and Justice), National Research Council (2012).

279 John Donohue and Justin Wolfers, Uses And Abuses of Empirical Evidence In The Death Penalty Debate,58 Stan. L. Rev. 791; See also Daniel S. Nagin and John V. Pepper (eds.), Deterrence And The Death Penalty, Committee on Deterrence and the Death Penalty (Committee on Law and Justice), National Research Council (2012).

4.3.9 Donohue and Wolfers also found that "the existing evidence for deterrence is surprisingly fragile, and even small changes in specifications yield dramatically different results... Our estimates suggest not just "reasonable doubt" about whether there is any deterrent effect of the death penalty, but profound uncertainty. [W]e are pessimistic that existing data can resolve this uncertainty."280

(Emphasis supplied)

280 John Donohue and Justin Wolfers, Uses And Abuses of Empirical Evidence In The Death Penalty Debate,58 Stan. L. Rev. 791, 794.

4.3.10 In a similar, extensive review of existing literature, the National Research Council in the United States concluded in a Report published in 2012 that "research to date on the effect of capital punishment on homicide is not informative about whether capital punishment decreases, increases, or has no effect on homicide rates. Therefore, the committee recommends that these studies not be used to inform deliberations requiring judgments about the effect of the death penalty on homicide."281 (Emphasis supplied)

281 Nat'l Academy of Sciences, Deterrence And Death Penalty 102 (Daniel S. Nagin, 2012).

4.3.11 The debate has thus come a full circle, with the conclusions reached in the first decade of the 21st century being the same as the those reached by the UK Royal Commission on the Death Penalty in 1953, when it said:

The general conclusion which we have reached is that there is no clear evidence in any of the figures we have examined that the abolition of capital punishment has led to an increase in the homicide rate, or that its reintroduction has led to a fall.282 (Emphasis supplied)

282 See Report of UK Royal Commission on the Death Penalty, 1953.

4.3.12 This view is also supported by the United Nations ('UN'), which has consistently held that there is no conclusive evidence on deterrence and the death penalty, in Resolutions on the Moratorium on the Use of the Death Penalty of 2008, 2010, 2013 and 2015.283 Further, the UN, in Reports published as recently as 2014 has noted that no evidence of deterrence can be presumed to exist.284 The UN has also noted that deterrence is nothing more than a "myth."285

283 See Resolutions on the Moratorium on the Use of the Death Penalty: Resolution 62/149 (2008), Resolution 65/206 (2010) and Resolution 67/176 (2013) and Resolution /69/186, (2015). It is important to note that India is not a signatory to these Resolutions.

284 Moving away from the Death Penalty: Lessons from South-East Asia, United Nations Human Rights Commission10 (2014).

285 Carolyn Hoyle and Roger Hood, The Myth of Deterrence in Moving Away From The Death Penalty: Arguments, Trends And Perspectives, United Nations Human Rights office of the High Commissioner, 74-83 (2014).

4.3.13 Further, the Constitutional Court of South Africa ruling on the deterrence argument, The State v. Makwanyane and Machunu, Case No. CCT/3/94, Constitutional Court of The Republic of South Africa, ruled:

It was accepted by the Attorney General that [deterrence] is a much disputed issue in the literature on the death sentence. He contended that it is common sense that the most feared penalty will provide the greatest deterrent, but accepted that there is no proof that the death sentence is in fact a greater deterrent than life imprisonment for a long period."A punishment as extreme and as irrevocable as death cannot be predicated upon speculation as to what the deterrent effect might be. The State v Makwanyane and Machunu, Case No. CCT/3/94, Constitutional Court of The Republic of South Africa.

4.3.14 The Supreme Court of India in Bachan Singh, taking note of the statistical studies on deterrence and the death penalty noted: "We may add that whether or not death penalty in actual practice acts as a deterrent, cannot be statistically proved, either way, because statistics as to how many potential murderers were deterred from committing murders, but for the existence of capital punishment for murder, are difficult, if not altogether impossible, to collect.

Such statistics of deterred potential murderers are difficult to unravel as they remain hidden in the innermost recesses of their mind." Bachan Singh v. State of Punjab, (1980) 2 SCC 684, at para 101. Thus, it is important to emphasize, as stated by the Supreme Court in Bachan Singh, that sentencing policy should not be influenced and decided solely on the basis of empirical analysis, one way or the other, of the perceived deterrent effect of the death penalty.



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