RADELET-BORG - The Changing Nature of Death Penalty Debates

The Changing Nature of Death Penalty Debates
Author(s): Michael L. Radelet and Marian J. Borg

Source: Annual Review of Sociology, Vol. 26 (2000), pp. 43-61
Published by: Annual Reviews
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Annu. Rev. Sociol. 2000. 26:43-61

Copyright? 2000 by AnnualReviews. All rightsreserved
THE CHANGING NATURE OF DEATH

PENALTYDEBATES
MichaelL. Radeletand MarianJ.Borg
Departmentof Sociology, Universityof Florida, Gainesville,Florida 32611-7330;

e-mail: radelet@soc.ufl.edu;mborg@soc.ufl.edu
Key Words capitalpunishment,publicopinion,deterrence,retribution,

social scienceresearch
* Abstract Focusingon thelast25 yearsof debate,thispaperexaminesthechanging natureof deathpenaltyargumentsin six specificareas:deterrence,incapacitation,
capriceand bias, cost, innocence,andretribution.Afterreviewingrecentchangesin
public opinionregardingthe deathpenalty,we reviewthe findingsof social science
researchpertinentto each of these issues. Ouranalysissuggeststhat social science
when
scholarshipis changingthewayAmericansdebatethedeathpenalty.Particularly
viewed withina historicaland world-widecontext,these changessuggesta gradual
movementtowardthe eventualabolitionof capitalpunishmentin America.
INTRODUCTION
In a monumental 1972 decision by the US Supreme Court, all but a few death
penalty statutes in the United States were declared unconstitutional(Furman v.
Georgia, 408 US 238). Consequentially,each of the 630 or so inmates then on
America'sdeathrows was resentencedto life imprisonment.The nine opinions in
the case, decided by a 5-4 vote, remainthe longest ever writtenby the Supreme
Court. Four years later, defying predictionsthat the United States would never
again witness executions (Meltsner 1973:290-92), the Supreme Court reversed
its course toward abolition by approvingseveral newly enacted capital statutes
(Gregg v. Georgia, 428 US 153). By mid-1999 therewere some 3500 men and 50
women (including 65 juveniles whose capital offenses predatedtheir eighteenth
birthdays)on deathrows in 38 states and two federaljurisdictions(NAACPLegal
Defense Fund 1999). Another550 deathrow inmateshadbeen executedin the two
precedingdecades (Death PenaltyInformationCenter 1999).
The goal of this paperis to review recent social science researchthathas examined variousdimensionsof capitalpunishment.We organizethis review by examining how the public debateon the deathpenaltyin the United Stateshas changed
over the past quartercentury.We attemptto show that argumentssupportingthe
0732-0582/00/0815-0043$14.00
43
44
RADELET? BORG
death penalty today, comparedto 25 years ago, rely less on such issues as deterrence, cost, and religious principles, and more on grounds of retribution.In
addition,those who supportthe deathpenalty are more likely today than in years
pastto acknowledgethe inevitabilityof racialandclass bias in deathsentencing,as
well as the inevitabilityof executingthe innocent.We suggest that many of these
argumentshave changedbecause of social science researchand thatthe changing
natureof the deathpenaltydebatein this countryis partof a worldwidehistorical
trendtowardabolitionof capitalpunishment.
Public opinion on the death penalty in America over the past 50 years has
vacillated. Supportdecreasedthroughthe 1950s and until 1966, when only 47%
of the American public voiced support;since 1982 about three quartersof the
population has favored capital punishment(Ellsworth & Gross 1994). While it
remains accurateto say that the vast majorityof the Americanpublic supports
the death penalty,at least under some circumstances,it is also true that support
for the death penalty is highly conditional.The best data on public supportfor
the deathpenaltycome from GallupPolls, and since the early 1980s these surveys
have regularlyfoundthatapproximatelythreequartersof the Americanpopulation
supportsthe deathpenalty.In 1991, Gallupfound that76% of Americansfavored
the deathpenalty;in 1994 supporthad reached80% (Gallup& Newport 1991:44,
Gillespie 1999).
Morerecentdataindicatethatpublic approvalfor the deathpenaltyhas peaked,
and even decreased a bit in recent years. By 1999, supportfor capital punishment had droppedto 71% (Gillespie 1999). State polls in California,Texas, and
Florida-the states with the highest numberof prisonerson their death rowsfurthersuggest thatdeathpenalty supporthas peaked. In California,a 1997 Field
Poll foundthatsupportfor the deathpenaltyhaddroppedto 74%from a 1985 peak
of 83%(Kroll 1997). In Texas, a 1998 ScrippsHowardPoll found thatsupportfor
the death penalty stood at 68%, down 18 points since 1994 (Walt 1998). A 1998
Floridapoll conductedby the New YorkTimes Regional Newspapersalso found
that 68% favoredthe deathpenalty (Judd 1998); a second 1998 Floridapoll done
by Mason/Dixonregisteredsupportat 63% (Griffin1998).
Whataccountsfor thesepatterns?Tofurtherprobefluctuationsin publicopinion
on the death penalty and changes in the ways that people discuss the issue, we
would like to turn the clock back 25 years and examine a handfulof arguments
that supportersof the deathpenaltywere making at the time.
DETERRENCE
In the early 1970s, the top argumentin favor of the death penalty was general
deterrence.This argumentor hypothesis suggests that we must punish offenders
to discourageothers from committingsimilaroffenses; we punish past offenders
to send a message to potentialoffenders.In a broadsense, the deterrenteffect of
punishmentis thoughtto be a functionof threemain elements:certainty,celerity,
DEBATES
DEATHPENALTY
45
and severity. First, people do not violate laws if they are certain that they will
be caught and punished. Second, celerity refers to the elapsed time between the
commissionof anoffense andthe administrationof punishment.Intheory,the more
quickly a punishmentis carried out, the greater its deterrenteffect. Third, the
deterrenteffect of a punishmentis a functionof its severity.However,over the last
two decades more and more scholarsand citizens have realized that the deterrent
effect of a punishmentis not a consistentdirecteffect of its severity-after a while,
increasesin the severityof a punishmentno longer add to its deterrentbenefits.In
fact, increases in a punishment'sseverity have decreasingincrementaldeterrent
effects, so that eventually any increase in severity will no longer matter.If one
wishes to deter anotherfrom leaning on a stove, medium heat worksjust as well
as high heat.
Writingin a specialissue of theAnnalsof theAmericanAcademyof Politicaland
Social Science devotedto the deathpenaltyin 1952, criminologistRobertCaldwell
asserted,"Themost frequentlyadvancedandwidely acceptedargumentin favorof
the deathpenalty is that the threatof its infliction deterspeople from committing
capital offenses" (Caldwell 1952:50-51). Scores of researchers,including such
eminentcriminologistsas EdwardSutherland(1925) and ThorstenSellin (1959),
have examinedthe possibility thatthe deathpenalty has a greaterdeterrenteffect
on homicide ratesthanlong-termimprisonment(see reviews in Bailey & Peterson
1997, Bohm 1999, Hood 1996:180-212, Paternoster1991:217-45, Peterson &
Bailey 1998, Zimring& Hawkins 1986:176-86). While some econometricstudies
have claimed to find deterrenteffects (e.g., Ehrlich 1975), these studieshave been
sharplycriticized (e.g., Klein et al 1978). Overall,the vast majorityof deterrence
studies have failed to supportthe hypothesis that the death penalty is a more
effective deterrentto criminalhomicides than long imprisonment.As two of this
country'smost experienceddeterrenceresearchersconclude after their review of
recent scholarship, "The available evidence remains 'clear and abundant'that,
as practicedin the United States, capital punishmentis not more effective than
imprisonmentin deterringmurder"(Bailey & Peterson 1997:155).
There is widespreadagreementamong both criminologists and law enforcement officials that capital punishmenthas little curbingeffect on homicide rates
thatis superiorto long-termimprisonment.In a recentsurveyof 70 currentandformer presidentsof threeprofessionalassociationsof criminologists(the American
Society of Criminology,the Academy of CriminalJustice Sciences, and the Law
and Society Association), 85%of the expertsagreedthatthe empiricalresearchon
deterrencehas shownthatthe deathpenaltyneverhas been, is not, andnevercould
be superiorto long prison sentences as a deterrentto criminalviolence (Radelet
& Akers 1996). Similarly,a 1995 survey of nearly 400 randomlyselected police
chiefs and county sheriffsfrom throughoutthe United Statesfound thattwo thirds
did not believe thatthe deathpenalty significantlyloweredthe numberof murders
(Radelet& Akers 1996).
Opinion polls show that the general public is graduallylearningthe results of
this body of research.According to a 1991 Gallup Poll, only 51% of Americans
46
RADELET? BORG
believed the deathpenaltyhad deterrenteffects, a dropof 11%from 1985 (Gallup
& Newport 1991). By 1997 this had fallen to 45% (Gross 1998:1454). In short,
a remarkablechange in the way the death penalty is justified is occurring.What
was once the public's most widely citedjustificationfor the deathpenaltyis today
rapidlylosing its appeal.
INCAPACITATION
A second change in death penalty argumentsinvolves the incapacitationhypothesis, which suggests that we need to execute the most heinous killers in orderto
preventthemfromkilling again.Accordingto this view, we need the deathpenalty
to protectthe publicfromrecidivistmurders.On its face it is a simple andattractive
position:No executedprisonerhas ever killed again, and some convicted murderers will undoubtedlykill again if, insteadof being executed,they are sentencedto
prison terms.
Researchaddressingthis issue has focused on calculatingpreciserisks of prison
homicides andrecidivistmurder.This workhas found thatthe odds of repeatmurder arelow, andthatpeople convictedof homicidetendto makebetteradjustments
to prison(and,if released,exhibitlowerratesof recidivism)thando otherconvicted
felons (Bedau 1982a, 1997b, Stanton 1969, Wolfson 1982). The best researchon
this issue has been done by JamesMarquartandJonathanSorensen,sociologists at
Sam HoustonState University,who trackeddown 558 of the 630 people on death
row when all deathsentencesin the UnitedStateswere invalidatedby the Supreme
Courtin 1972. Contraryto the predictionsof those who advocatethe deathpenalty
on the groundsof incapacitation,Marquartand Sorensenfound that among those
whose deathsentenceswere commutedin 1972, only aboutone percentwent on to
kill again. This figure is almost identicalwith the numberof death row prisoners
laterfound to be innocent (Marquart& Sorensen 1989). Interpretedanotherway,
these figures suggest that 100 prisonerswould have to be executedto incapacitate
the one person who statisticallymight be expected to repeat. Arguably,today's
more sophisticatedprisons and the virtualeliminationof parolehave reducedthe
risks of repeathomicide even further.
While the incapacitationargumentmight have made sense in an era when
therewere no prisonsavailablefor long-termconfinement,the empiricalevidence
suggests thattoday's prisons and the widespreadavailabilityof long prisonterms
arejust as effective as capitalpunishmentin preventingmurderersfrom repeating
theircrimes. Still, in papersfirstcoauthoredin 1994 (Ellsworth& Gross 1994) and
updatedin 1998, Gross (1998) concludesthatnext to retribution,incapacitationis
the second most popularreason for favoringthe deathpenalty.In a 1991 national
poll, for example, 19%of deathpenaltysupporterscited incapacitationas a reason
for favoringthe death penalty (Gross 1998:1454). But in the last two decades it
has become clear thatif citizens areconvincedthatconvictedmurdererswill never
be releasedfrom prison, supportfor the deathpenalty dropsdramatically.
DEATHPENALTY
DEBATES
47
The public opinion polls presented at the beginning of this paper measure
supportfor the death penalty in the abstract,not supportfor the death penalty
as it is actually applied. A key factor that has changed in sentencing for capital
crimes since the Furmandecision in 1972 has been the increasedavailabilityof
"life without parole" as an alternativeto the death penalty. Today, at least 32
states offer this option (Wright 1990), althoughit is clear that most citizens and
jurors do not realize this and vastly underestimatethe amountof time that those
convicted of capital murderswill spend in prison (Fox et al 1990-1991:511-15,
Gross 1998:1460-62). Anothersegmentof the populationrealizesthatlife without
parole is an alternativeto the deathpenalty,but in spite of this, believe thatfuture
political leaders or judges will find ways to release life-sentenced inmates. It is
a paradoxicalposition: Such citizens supportgiving the governmentthe ultimate
power to take the lives of its citizens but do so because of distrustof these same
governmentsand/orthe perceptionof governmentalincompetency.1
Nonetheless,when askedaboutsupportfor the deathpenaltygiven an alternative
punishmentof life withoutparole,public supportfor the deathpenaltyplummets.
In Florida, for example, where those convicted of first-degreemurdermust be
sentencedeitherto life withoutparoleorto thedeathpenalty,only 50%of the public
polled in 1998 expressedsupportfor the deathpenaltygiven the formeralternative,
and 44% of the respondents supportedthe idea of entirely banning the death
penalty given the life without parole option (Griffin 1998). Nationally,the 1999
GallupPoll found that 56% of the respondentssupportedthe deathpenalty given
the alternativeof life without parole-a vast differencefrom the "overwhelming
support"thatmanyerroneouslybelieve the deathpenaltyenjoys.As moreandmore
Americanslearn that, absent the death penalty,those convicted of capital crimes
will neverbe releasedfromprison,furtherwitheringof deathpenaltysupportseems
likely.
CAPRICEAND BIAS
As new death penalty laws were being passed in the 1970s to replace those invalidatedby the Furmandecision, many thoughtthat the death penalty could be
applied in a way that would avoid the arbitrarinessand racial and class bias that
had been condemnedin Furman(Bedau 1982b, Black 1981). However,research
conductedin the years since has all but unanimouslyconcludedthat the new laws
have failed to achieve this goal.
Most of these analyses conclude thatfor crimes that are comparable,the death
penalty is between three and four times more likely to be imposed in cases in
which the victim is white ratherthan black (Baldus & Woodworth1998, Baldus
et al 1990, Bowers et al 1984, Gross & Mauro 1989, Radelet & Pierce 1991).
In a 1990 review of 28 studies that had examined the correlationbetween race
1Weare indebtedto ProfessorSamuel Gross for this point.
48
RADELET ? BORG
and death sentencingin the United States post-1972, the US GeneralAccounting

Agency (1990:6) concluded:
the synthesis [of the 28 studies reviewed] supportsa strongrace of victim
influence.The race of offenderinfluenceis not as clear cut and varies
across a numberof dimensions.Althoughthereare limitationsto the
studies' methodologies,they are of sufficientqualityto supportthe
syntheses' findings.
The problem continues to be documented in research published in the 1990s.
Again, race-of-victim effects are regularly found (e.g., Keil & Vito 1995), althoughsome research,such as an extensive studyjust completedby David Baldus
andhis colleagues in Philadelphia(Balduset al 1998), also findsrace-of-defendant
effects. In the most recent overview of the problem of racial bias in the administrationof the death penalty, Amnesty Internationalconcluded that it was "undeniable"that the death penalty in the United States "is applied disproportionately on the basis of race, ethnicity, and social status"(Amnesty International
1999a:2).
By any measure,the most comprehensiveresearchever producedon sentencing disparitiesin Americancriminalcourts is the work of David Baldus and his
colleagues conductedin Georgiain the 1970s and 1980s (Balduset al 1990). After
statisticallycontrollingfor some 230 variables,these researchersconcluded that
the odds of a death sentence for those who kill whites in Georgia are 4.3 times
higher than the odds of a death sentence for those who kill blacks. Attorneys
representingGeorgiadeathrow inmateWarrenMcCleskey took these data to the
SupremeCourt in 1987, claiming unfairracial bias in the administrationof the
deathpenaltyin Georgia.But the Courtrejectedthe argument,as well as the idea
that a statisticalpatternof bias could prove any bias in McCleskey's individual
case (McCleskeyv. Kemp,481 U.S. 279 (1987).
The vote in the McCleskey case was 5 to 4. Interestingly,the decision was
written and the deciding vote cast by Justice Lewis Powell, who was then serving his last year on the Court. Four years later, Powell's biographerasked the
retiredjustice if he wished he could change his vote in any single case. Powell
replied, "Yes,McCleskeyv. Kemp."Powell, who voted in dissent in Furmanand
in his years on the Court remained among the justices who regularly voted to
sustain death sentences, had changed his mind. "I have come to think that capital punishmentshould be abolished ... [because] it serves no useful purpose"
(Jeffries 1994:451-52). Had Powell had this realizationa few years earlier,it is
quite likely that,as in 1972, the deathpenaltywould have been abolished,at least
temporarily.
In effect, the McCleskeydecision requires that defendantswho raise a race
claim must prove thatrace was a factorin theirindividualcases, and thatas far as
the courtsareconcerned,the statisticalpatternsindicatingracialbias arebasically
irrelevant.In lateryears,the "RacialJusticeAct,"which wouldhaverequiredcourts
to hold hearingsto examine statisticalpatternsof disparitiesin capitalcases, failed
to gain congressionalapproval(Bright 1995:465-66).
DEBATES
DEATHPENALTY
49
Two ways in which possible bias and arbitrarinessin the deathpenalty can be
reducedare throughthe provision of effective counsel to the poor and the careful
use of executiveclemency powers.Again, social science researchaddressingthese
issues has identifiedproblems.
Researchon the quality of attorneysprovidedto indigent defendantscharged
with capital offenses has relied on case-study methodology and examinationof
statutorylaw or customaryproceduresused to attractand compensate counsel.
Stephen Bright has documenteddozens of cases in which death sentences were
given despite the fact that the defense attorneyswere drunk,using drugs, racist
against their own clients, unpreparedor outrightunqualifiedto practicecriminal
law, or otherwise incompetent(Bright 1997a,b). In severalcases, the defense attorney slept during the trial-giving a new meaning to the term "dreamteam"
(Bright 1997b:790,830). Stategovernmentsareincreasinglyappointingattorneys
in capitalcases who submitthe lowest bids;typically,attorneysarecompensatedat
less thanthe minimumwage (Bright 1997b:816-21). As a result,those sentenced
to death are often distinguishablefrom other defendantsconvicted of murdernot
on the basis of the heinousnessof the crime, but insteadon the basis of the quality
of their defense attorneys.
A possible remedy for these failures at trial is executive clemency. Executive
clemency can be used not only to removebias and arbitrariness,but also to correct
mistakes (e.g., when doubts exist about the prisoner'sguilt, or when previously
unknown or underweightedmitigation-such as evidence of mental illness or
retardation-emerges), or to rewardrehabilitation.Again, social science research
in this area suggests the ineffectivenessof executive clemency in achieving these
goals. Comparedto the years before the 1972 Furmandecision, clemency today
is rarelygranted(Bedau 1990-1991). Between 1972 and the end of 1992, only 41
deathsentencesin Americanjurisdictionswere commutedto prisontermsthrough
power of executive clemency (Radelet & Zsembik 1993), and an averageof just
over one per yearhas been grantedsince. Of the 51 commutationsgrantedthrough
mid-1999, only six were grantedon groundsof "equity."
Publicopinionon the deathpenaltyshows thatwhile most Americansrecognize
the problems of race and class bias, they do not view such discriminationas a
reason to oppose the deathpenalty.In the 1999 GallupPoll, for example, 65% of
the respondentsagreedthat a poor person is more likely than a person of average
to above-averageincome to receive the deathpenaltyfor the same crime(Gillespie
1999). Half the respondentsbelieved that black defendantsare more likely than
whites to receive a death sentence for the same crime. Despite recognizing these
inequities, 71% of those polled favoredthe deathpenalty.
COST
A fourthway in which deathpenalty argumentshave changedin the past 25 years
involves the issue of its fiscal costs. Two decades ago, some citizens and political
leaders supportedthe death penalty as a way of avoidingthe financialburdensof
50
RADELET * BORG
housing inmates for life or long prison terms. As recently as 1983, one of this
century'smost skilled proponentsof the deathpenalty,Ernestvan den Haag, was
able to assert,"itis not cheaperto keep a criminalconfinedfor all or most of his life
thanto execute him. He will appealjust as much [as a death-sentencedprisoner]"
(van den Haag & Conrad1983:34). A 1985 Gallup Poll found that 11%of those
supportingthe deathpenaltycited the high fiscal costs of imprisonmentas a reason
for theirpositions (GallupReport 1985).
Since then,however,researchhas firmlyestablishedthata moder deathpenalty
system costs severaltimes morethanan alternativesystem in which the maximum
criminalpunishmentis life imprisonmentwithoutparole.This researchhas been
conducted in different states with differentdata sets by newspapers,courts and
legislatures,andacademics(see reviews in Bohm 1998, Dieter 1997, Spangenberg
& Walsh 1989). Estimatesby the MiamiHerald aretypical:$3.2 million for every
electrocutionversus $600,000 for life imprisonment(von Drehle 1988). These
cost figuresfor capitalpunishmentinclude expenses for not only those cases that
end in execution, but also the many more cases in which the death penalty is
sought thatnever end with a death sentence, and cases in which a death sentence
is pronouncedbut nevercarriedout. They also include the costs both for trialsand
for the lengthy appealsthat are necessary before an execution can be authorized.
Consequently,the cost issue today has become an anti-deathpenalty argument,
albeitof debatablestrength.Absentthe deathpenalty,its criticsargue,stateswould
have more resourcesto devote to the ends the deathpenaltyis allegedly designed
to pursue,such as reducinghigh rates of criminalviolence or renderingeffective
aid to families of homicidevictims. Those in favorof capitalpunishment,however,
would arguethatits retributivebenefits are worththe costs.
MISCARRIAGESOF JUSTICE
Death penalty argumentsare changing in a fifth way: Death penalty retentionists
now admit that as long as we use the death penalty, innocent defendants will
occasionally be executed. Until a decade ago, the pro-death penalty literature
took the position that such blunderswere historical oddities and could never be
committedin moderntimes. Todaythe argumentis not over the existence or even
the inevitabilityof sucherrors,butwhetherthe allegedbenefitsof the deathpenalty
outweigh these uncontested liabilities. Several studies conducted over the last
two decades have documentedthe problemof erroneousconvictions in homicide
cases (Givelber 1997, Gross 1996, Huff et al 1996, Leo & Ofshe 1998, Radelet
et al 1992). Since 1970 there have been 80 people released from death rows in
the United States because of innocence (Death PenaltyInformationCenter 1999;
for a descriptionof 68 of these cases, see Bedau & Radelet 1987, Radelet et al
1996).
The cases of those wrongly sentenced to death and who were totally uninvolved in the crime constitute only one type of miscarriageof justice. Another
DEATHPENALTY
DEBATES
51
(and more frequent)blunder arises in the cases of the condemned who, with a
more perfectjustice system, would have been convictedof second-degreemurder
or manslaughter,makingthem innocentof firstdegree murder.For example, consider the case of Ernest Dobbert, executed in Florida in 1984 for killing his
daughter.The key witness at trial was Dobbert's 13-year-oldson, who testified
that he saw his father kick the victim (this testimony was later recanted).In a
dissent from the Supreme Court's denial of certiorariwrittenjust hours before
Dobbert's execution, Justice ThurgoodMarshallarguedthat while there was no
question that Dobbert abusedhis children,there was substantialdoubt about the
existence of sufficientpremeditationto sustainthe convictionfor first-degreemurder. "Thatmay well make Dobbert guilty of second-degreemurderin Florida,
but it cannot make him guilty of first-degreemurderthere. Nor can it subject
him to the death penalty in that State" (Dobbert v. Wainwright,468 U.S. 1231,
1246 (1984)). If Justice Marshall's assessment was correct, then Dobbert was
not guilty of a capital offense, and-in this qualifiedsense-Florida executed an
innocentman.
In other cases, death row inmates have indeed killed someone, but, again, a
more perfect system for deciding who should be convicted and who should die
would have found these defendantsnot guilty because of insanityor self-defense,
or because the killing was, in reality,an accident.Examinedin this way, the class
of "wrongfulconvictions"extends far beyond the group of those convicted who
were legally and factuallyinnocentof the crime.
Citing research by social scientists on racial disparities in death sentencing
and on the inevitability of wrongful convictions, Supreme Court Justice Harry
Blackmun, who until then counted himself as a supporterof the death penalty,
wrote in 1994:
From this day forward,I no longer shall tinkerwith the machineryof death.
For more than 20 years I have endeavored... along with the majorityof
this Court,to develop proceduraland substantiverules that would lend
more thanthe mere appearanceof fairnessto the deathpenalty endeavor.
Ratherthan continueto coddle the Court'sdelusion thatthe desiredlevel
of fairnesshas been achieved ... I feel morallyand intellectuallyobligated
to concede thatthe deathpenalty experimenthas failed (Callins v. Collins,
510 U.S. 1141, 1145 (1994)).
Clearly,concern about the execution of the innocent is an issue that, at the very
least, gives pause to some of those who at first glance might count themselves as
favoringthe deathpenalty.
This conclusion is furthersupportedby data from the Capital Jury Project,
an on-going study under the direction of William Bowers and sponsoredby the
National Science Foundation.The researchis attemptingto discover how jurors
in capital cases spread over 15 states have decided whether or not to impose
or recommend death sentences (Bowers 1995). In a 1998 analysis, Bowers et
al (1998:1533) provide clear evidence that lingering doubt over the defendant's
52
RADELET? BORG
guilt is the most significant factor in "fostering a pro-life commitment during
the guilt phase of [a capital] trial."Among respondentswho identified lingering doubt as a mitigatorin their cases, 63% describedit as "very important"in
their punishmentdecisions. And 69% said that lingering doubt made them less
likely to vote for death (Bowers et al 1998:1534). In comparison, the second
most significantmitigatoridentifiedby the respondentswas evidence thatthe defendantwas mentallyretarded.Forty-fourpercentcited this as "veryimportant,"
and 55% consideredit a factor in decreasing their likelihood of casting a death
vote.
The resultsof the CapitalJuryProjectareconsistentwith findingsfromprevious
studies examiningthe significanceof lingering doubt in jurors' final punishment
decisions. In South Carolina,for example, lingering doubt aboutthe defendant's
guilt was identifiedas the single most importantreason why jurors select prison
sentences over death sentences (Garvey 1998:1559, 1562-64). And a study of
capital jurors in Florida reportedsimilar patterns(Bowers et al 1998:1536). In
sum, "thesedatamakeit clearthatlingeringdoubt,when it is present,is an integral
element in forming a reasoned moraljudgment about punishment.Indisputably,
lingeringdoubtplays a centralrole in jurors' thinkingaboutwhat punishmentthe
defendantdeserves"(Bowers et al 1998:1536).
THE GROWINGFOCUSON RETRIBUTION

Thus far we have argued that in the last two dozen years, debates over deterrence, incapacitation,cost, fairness,andthe inevitabilityof executingthe innocent
have all been either neutralizedor won by those who standopposed to the death
penalty. But while death penalty advocates increasinglyacknowledge that these
traditionaljustificationsare growing less persuasive,in their place we have witnessed the ascendancy of what has become the most importantcontemporary
pro-death penalty argument:retribution.Here one argues that justice requires
the death penalty.Those who commit the most premeditatedor heinous murders
should be executed simply on the groundsthat they deserve it (Bers 1979, van
den Haag 1997, 1998). Life without parole, accordingto this view, is simply insufficientpunishmentfor those who commit the most heinous and premeditated
murders.
Retributiveargumentsare often made in the name of families of homicide
victims, who aredepictedas "needing"or otherwisebenefittingfromthe retributive
satisfactionthatthe deathpenaltypromises.Perhapsthe questionmost frequently
posed to deathpenalty opponentsduringdebates is "How would you feel if your
closest loved one was brutallymurdered?"Forexample,one of the mostmemorable
and damagingquestions of the 1988 presidentialcampaignwas raised by Cable
News Network (CNN) correspondentBernardShaw during the second debate
betweencandidatesGeorgeBush andMichaelDukakis,when ShawaskedDukakis
DEATHPENALTY
DEBATES
53
whetherhis opposition to the death penalty would be swayed if someone raped

and murderedhis wife (Germond& Wircover1989:5).
Those who oppose capitalpunishmentcan reasonablyrespondby pointingout
that the death penalty offers much less to families of homicide victims than it
firstappears.For example,by divertingvast resourcesinto deathpenaltycases-a
small proportionof all homicide cases-the statehas fewer resourcesfor families
of noncapitalhomicide victims and for more effective assistance for families of
all homicide victims. Or, one could arguethat the deathpenalty hurtsfamilies of
homicide victims in cases in which the killer is not sentencedto death, since the
prisonsentencerisksmakingthemfeel as if theirloved one's deathwas not "worth"
the life of thekiller.Or,one could arguethatthedeathpenaltyservesto keepthe case
openfor manyyearsbeforethe executionactuallyoccurs,oftenthroughresentences
or retrials,continuouslypreventingthe wounds of the family of the victim from
healing. Motivated by a desire to express these arguments,an organizationof
families thatoppose the deathpenalty,MurderVictimsFamiliesfor Reconciliation
(now located in Cambridge,MA) was formed in 1976. They and other groupsof
"homicidesurvivors"have regularlypointedout thatthe scholarlycommunityhas
devoted very little attentionto families of homicide victims (for an exception, see
Vandiver1998). Indeed,we areawareof no researchspecificallystudyingthe shorttermandlong-termeffects of the executionof a killeron the family of the homicide
victim, oron the familyof theexecutedinmate.Ontheotherhand,the scholarshipof
RobertJohnson(1981, 1998a, 1998b) andothers(e.g., Cabana1996) gives readers
some insightsinto whatprisonlife in general,andlife on deathrow in particular,is
like. The conclusions of these researcherslend credenceto those who arguethatin
some respects,life imprisonmentwithoutparolecan be even worse thanexecution.
Finally, in one of the last papers published before his death, criminologist
Marvin Wolfgang (1996) reminds us that even if someone might "deserve"to
die in the abstract,that does not mean that death is a punishmentrequiredby
any consistent philosophy of punishment.Given well-documentedinjustices in
the applicationof the death penalty, Wolfgang raises the issue of whether such
a penalty can be applied in the name of "justice."For Wolfgang, the question
becomes not "Whodeserves to die?,"but instead, "Whodeserves to kill?"
Unlike the argumentsreviewed above, retributionis a non-empiricaljustification and thus all but impossible to test with empirical data. After all, there
are no mathematicalformulae available or on the horizon that can tell us precisely (or even roughly) how much of a given punishmenta murderer-or any
other offender-"deserves." In the end, the calculation of how much punishment a criminal "deserves"becomes more a moral and less a criminological
issue.
To the extent that the death penalty is justified on moral (retributive)grounds,
it is paradoxical that much of what can be called the "moral leadership"in
the United States is already opposed to the death penalty. Leaders of Catholic,
most Protestant,and Jewish denominations are strongly opposed to the death
54
RADELET ? BORG
penalty,andmost formalreligiousorganizationsin the UnitedStateshaveendorsed

statementsin favor of abolition (American Friends Service Committee 1998).
In the words of Father Robert Drinan, a Jesuit priest and former member of
Congress, "The amazing convergence of opinion on the death penalty among
America's religious organizationsis probablystronger,deeper,and broaderthan
the consensus on any othertopic in the religious communityin America"(Drinan
1991:107).
Consequently,no longer are Old Testamentreligious argumentsin favorof the
deathpenalty widely used or heard.In the late 1990s the CatholicChurchand its
leader,Pope JohnPaul II, are increasinglyspeakingout againstthe deathpenalty.
This activitylikely has been fosteredin partby the success of the book and movie
Dead Man Walking,which presentsthe autobiographical"journey"of a Catholic
nun who ministersto inmateson Louisiana'sdeathrow, as well as to the families
of some of their victims (Prejean1993). Prejean'saccounthas become the most
populardeathpenaltybook of the century.
Thereis also evidence thatthe generalpublic recognizes some limits to retributive punishments.In 1991, the Gallup Poll asked respondentswhich method of
execution they preferred.After all, if one were really retributive,and if people
like OklahomaCity bomberTimothy McVeigh really got what they "deserved,"
the preferredmethodmight be slow boiling or public crucifixion.Yet, 66% of the
respondentsfavoredlethal injection, an increaseof ten points from six years earlier (Gallup & Newport 1991:42). This preferencelikely reflects, at least in part,
the belief thatinmatesmight suffertoo much in electric chairsand gas chambers.
In contrast,lethal injection offers an ostensibly less painful death. In fact, death
penalty opponentsoften argue against the use of lethal injection on the grounds
that this method makes executions more palatableto the public by creating the
appearancethatthe inmateis simply being put to sleep (Schwarzschild1982).
A similar patternin public opinion regardingexecution methods is found in
Florida, where one inmate burstinto flames while sitting in the electric chair in
1990, and anotherdid the same in 1997 (Borg & Radelet 1999, Denno 1997).
Again, an ardentretributivistwould shrug her shouldersat such painful botches
and argue that while indeed these may be unfortunate,botched executions are
not especially troubling.But contraryto the retributivehypothesis, half of the
respondentspolled in Floridain 1998 favoredlethal injection, and only 22% the
electricchair(10%chose "either"and 16%favored"neither")(Judd1998). And in
1998, 77%of Floridiansexpressedsupportfor the idea of allowingthe condemned
to choose between electrocutionand lethal injection (Griffin 1998). Historically,
these tendenciesarenot unique.The searchfor more "humane"methodsof execution dates back at least to the eighteenthcenturywhen the guillotine was adopted
because of botched beheadings (Laurence 1960), and to the nineteenthcentury
when the electric chair was introducedas a "humane"remedy for botched hangings (Bernstein1973). Nonetheless,the concernto reducethe prisoner'ssuffering
is inconsistent with the idea that we need the death penalty on the grounds of
retributivejustice.
DEATHPENALTY
DEBATES
55
TRENDSTOWARDABOLITION
The abovechangesin deathpenaltydebatescome at a time whenthereis a relatively
rapidworldwide movement away from the death penalty.In 1998, five countries
combinedfor over 80%of the world'sexecutions-China,the DemocraticRepublic
of the Congo, Iran,Iraq,and the United States (Amnesty International1999b:15).
These first four are countries with whom, normally,the United States does not
sharedomestic policies.
Hugo Adam Bedau, the dean of Americandeath penalty scholars, has argued
that the history of the deathpenalty in the United States over the past two centuries is a history of its gradualretraction.Among specific changes that markthe
path towardthe decline of the deathpenaltyhave been:
The end of public executions and of mandatorycapital sentencing,
introductionof the concept of degrees of murder,developmentof appellate
review in capitalcases, decline in annualexecutions,reductionin the variety
of capital statutes,experimentswith complete abolition,even the searchfor
more humaneways to inflict deathas a punishment... (Bedau 1982a:3-4).
Withover 3500 men and women currentlysentencedto deathin the United States,
it is quite easy for those who oppose the deathpenaltyto preachdoom and gloom.
However, Bedau's observations invite students of the death penalty to take a
long-term historical view. With such a lens, the outlook for abolition is more
optimistic.
A century ago, only three countries had abolished the death penalty for all
crimes; by the time of Furman in 1972 the numberhad risen to nineteen. But
since then the numberof abolitionistcountrieshas tripled.By the end of 1998, 67
countrieshad abolishedthe deathpenalty for all offenses, fourteenmore retained
it only for "exceptional"crimes (i.e., duringwartime),and 24 othershad not had
an executionin at least ten years. All fifteen membersof the EuropeanUnion have
abolishedthe deathpenalty,andthe Councilof Europe,with 41 members,has made
the abolitionof the deathpenalty a condition of membership.In the firstdecision
ever made by the newly constitutedSouth AfricanConstitutionalCourtin 1995thatcountry'sSupremeCourt-the deathpenaltywas abolishedas "cruel,inhuman
anddegrading"(Sonn 1996). Russia, a countrythatwas amongthe world'sleaders
in executions in the early 1990s, announcedin 1999 that it, too, was abolishing
the deathpenalty(AmnestyInternational1999b:16). In June 1999 PresidentBoris
Yeltsincommutedover 700 death sentences to termsof imprisonment.Clearly,in
a comparativelyshort historicaltime span, more than half of the countriesin the
world have abolished the death penalty,and the momentumis unquestionablyin
the directionof total worldwide abolition.
The above is not meant to suggest the absence of countries that continue to
swim against the tide of worldwide abolition. Internationally,the death penalty
is slowly expandingin a few countries, such as the Philippines,Taiwan,Yemen,
andthe English-speakingCaribbean(AmnestyInternational1999b).In the United
56
RADELET * BORG
States,both Congressandthe SupremeCourtareincreasinglyrestrictingaccess to

federalcourtsby inmatescontestingtheirdeathsentences(Freedman1998, Yackle
1998). Few would disagreewith the predictionthatthe next few years will be busy
ones for America'sexecutioners.
On the other hand, as the 1990s draw to a close, more and more countries
are signing internationaltreatiesthatabolishor restrictthe deathpenalty(Schabas
1997). Forthe thirdyearin 1999, theUN Commissionon HumanRights,headquarteredin Geneva,passed a resolutioncalling for a moratoriumon deathsentencing.
The resolutionwas cosponsoredby 72 states (comparedto 47 in 1997) (Amnesty
International1999b:16). Althoughthe total abolitionof the deathpenaltyis its ultimate goal, the resolutionencouragesa strategyof "progressivelyrestrictingthe
offenses for which the deathpenaltycan be imposed"(New YorkTimes1999a:A4).
Towardthis end, the 1999 resolutionreaffirmsan internationalban on executions
of those under18, those who arepregnant,andthose who aresufferingfrommental
illness. The resolutionalso calls for non-deathpenaltynationsto refuseto extradite
suspects to countriesthatcontinueto use executions as a form of punishment.
Othercalls for moratoriumson death sentencingare also being made. In May
1999, the Nebraskalegislaturepassed a resolution calling for a two-year moratorium on executions because of questions of equity in the administrationof its
state'sdeathpenalty.This resolutionwas vetoedby the governor,butlaterthe legislatureunanimouslyoverrodethe governor'sveto of thatpartof the legislationthat
allocatedsome $165,000 to studythe issue (Tysyer1999). In March1999, the Illinois House of Representativespassed a similarresolutioncalling for a moratorium
on executions;authoritiesin that state have acknowledgedthat 12 prisonershave
been sent to deathrow in the past two decades who turnedout to be innocent(New
YorkTimes1999b). Finally,in February1997, on behalf of its 400,000 members,
the normallyconservativeHouse of Delegates of the AmericanBar Association
called for a moratoriumon the death penalty.The House of Delegates cited four
principalreasons:the lack of adequatedefense counsel, the erosion of state postconvictionandfederalhabeascorpusreview,the continuingproblemof racialbias
in the administrationof the deathpenalty,and the refusal of states and the courts
to take action to preventthe execution of juveniles and the mentallyretarded(for
an elaborationof this resolutionand the reasonsbehindit, see the series of papers
publishedin a special issue of Law and ContemporaryProblems,Autumn 1998).
Although the resolutioncannot be seen as a statementof opposition to the death
penalty per se, it is an attemptby the House of Delegates to bring these serious
problemsto the attentionof legislatorsand the Americanpublic. Whateffect this
resolutionwill have, of course, remainsunknown.
CONCLUSION
The goal of this paperhas been to presenta brief overview of recent scholarship
on the death penalty.We organizedthis discussion by examining six issues that
have traditionallyframeddeathpenaltydebates,paying particularattentionto the
DEBATES
DEATHPENALTY
57
social scientificliteraturethathas evaluatedeach one. Ourdiscussion suggests that

changes in the discourseof capitalpunishmenthave evolved partlyin responseto
the findings of this research.We conclude with three observationsderived from
the foregoing discussion.
First,the past two dozen yearshave witnessed significantchanges in the nature
of death penalty debates. Those who supportthe death penalty are less likely,
and indeed less able, to claim that the deathpenalty has a deterrenteffect greater
than that of long imprisonment,or that the death penalty is cheaper than long
imprisonment,or that it gives significant incapacitativebenefits not offered by
long imprisonment.Fewer and fewer religious leaders adopt a pro-death penalty
position, and advocatesof capital punishmenthave been forced to admit that the
death penalty continues to be applied with unacceptablearbitrariness,as well as
racialandclass bias. A fair assessmentof the dataalso leads to the conclusion that
as long as the executioneris in the state'semploy,innocentpeople will occasionally
be executed.Increasingly,the best (andarguablythe sole) justificationfor the death
penalty rests on retributivegrounds.
Second, at the same time as Americandiscourseon the deathpenaltyis changing, there is an acceleratingworldwide decline in the acceptanceof capital punishment. Indeed, the trendtowardthe worldwideabolitionof the deathpenalty is
inexorable.To be sure, the immediatefuturewill continueto bring high numbers
of executionsin Americanjurisdictions.In all probability,these will increaseover
the numberswitnessed today.Nonetheless, takinga long-termhistoricalview, the
trend towardthe abolition of the death penalty, which has now lasted for more
than two centuries, will continue. Things could change quickly; the final thrust
might come from conservativepoliticians who turn against the death penalty in
the nameof fiscal austerity,religiousprinciples(e.g., a consistent"pro-life"stand),
responsiblecrime-fighting,or genuineconcernfor a "smaller"government.Public
supportfor the deathpenalty might also drop if there emergedabsoluteincontrovertibleproof thatan innocentprisonerhad been executed.For those who oppose
the death penalty,the long-termforecast should fuel optimism.
Finally, our review sends a positive message to criminologistsand othersocial
scientists who often feel as if theirresearchis ignoredby the public and by policy
makers. As our review suggests, changes in the natureof death penalty debates
are a direct consequence of social scientists' close and careful examinationof
the variousdimensions of these arguments.Scholarshave examinedquestions of
deterrence,race, cost, methods of execution, innocence, juror decision-making,
and the political and social environmentsin which death penalty legislation has
emerged(Mello 1999, Tabak1999). Clearly,this is one areaof publicpolicy where
social science researchis making a slow but perceptibleimpact.
ACKNOWLEDGMENTS
We would like to thankHugo AdamBedauandSamuelR. Grossfor theirinsightful
comments on earlierdrafts.
58
RADELET * BORG
Visit the Annual Reviews home page at www.AnnualReviews.org
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The Changing Nature of Death Penalty Debates

Author(s): Michael L. Radelet and Marian J. Borg

Annu. Rev. Sociol. 2000. 26:43-61

THE CHANGING NATURE OF DEATH

Departmentof Sociology, Universityof Florida, Gainesville,Florida 32611-7330;

Key Words capitalpunishment,publicopinion,deterrence,retribution,

and death sentencingin the United States post-1972, the US GeneralAccounting

THE GROWINGFOCUSON RETRIBUTION

whetherhis opposition to the death penalty would be swayed if someone raped

penalty,andmost formalreligiousorganizationsin the UnitedStateshaveendorsed

States,both Congressandthe SupremeCourtareincreasinglyrestrictingaccess to

social scientificliteraturethathas evaluatedeach one. Ourdiscussion suggests that

ica: CurrentControversies.New York:Oxford Univ. Press

Keil TJ, Vito GF. 1995. Race and the death

Radelet ML, Akers RL. 1996. Deterrenceand

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