DETERRENCE
AND THE
DEATH PENALTY

Committee on Deterrence and the Death Penalty

Daniel S. Nagin and John V. Pepper, Editors


Committee on Law and Justice

Division of Behavioral and Social Sciences and Education

NATIONAL RESEARCH COUNCIL
             OF THE NATIONAL ACADEMIES

THE NATIONAL ACADEMIES PRESS
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DETERRENCE AND THE DEATH PENALTY Committee on Deterrence and the Death Penalty Daniel S. Nagin and John V. Pepper, Editors Committee on Law and Justice Division of Behavioral and Social Sciences and Education

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THE NATIONAL ACADEMIES PRESS • 500 Fifth Street, NW • Washington, DC 20001 NOTICE: The project that is the subject of this report was approved by the Govern- ing Board of the National Research Council, whose members are drawn from the councils of the National Academy of Sciences, the National Academy of Engineer- ing, and the Institute of Medicine. The members of the committee responsible for the report were chosen for their special competences and with regard for appropri- ate balance. This study was supported by Grant Number 2010-IJ-CX-0018 from the National Institute of Justice, Grant Number TRF09-01115 from the Tides Foundation, and the Proteus Action League (grant not numbered). Any opinions, findings, conclu- sions, or recommendations expressed in this publication are those of the author(s) and do not necessarily reflect the views of the organizations or agencies that pro- vided support for the project. International Standard Book Number-13: 978-0-309-25416-8 International Standard Book Number-10: 0-309-25416-7 Additional copies of this report are available from the National Academies Press, 500 Fifth Street, NW, Keck 360, Washington, DC 20001; (800) 624-6242 or (202) 334-3313; http://www.nap.edu. Copyright 2012 by the National Academy of Sciences. All rights reserved. Printed in the United States of America Suggested citation: National Research Council. (2012). Deterrence and the Death Penalty. Committee on Deterrence and the Death Penalty, Daniel S. Nagin and John V. Pepper, Eds. Committee on Law and Justice, Division of Behavioral and Social Sciences and Education. Washington, DC: The National Academies Press.

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The National Academy of Sciences is a private, nonprofit, self-perpetuating society of distinguished scholars engaged in scientific and engineering research, dedicated to the furtherance of science and technology and to their use for the general welfare. Upon the authority of the charter granted to it by the Congress in 1863, the Acad- emy has a mandate that requires it to advise the federal government on scientific and technical matters. Dr. Ralph J. Cicerone is president of the National Academy of Sciences. The National Academy of Engineering was established in 1964, under the charter of the National Academy of Sciences, as a parallel organization of outstanding en- gineers. It is autonomous in its administration and in the selection of its members, sharing with the National Academy of Sciences the responsibility for advising the federal government. The National Academy of Engineering also sponsors engineer- ing programs aimed at meeting national needs, encourages education and research, and recognizes the superior achievements of engineers. Dr. Charles M. Vest is presi- dent of the National Academy of Engineering. The Institute of Medicine was established in 1970 by the National Academy of Sciences to secure the services of eminent members of appropriate professions in the examination of policy matters pertaining to the health of the public. The Insti- tute acts under the responsibility given to the National Academy of Sciences by its congressional charter to be an adviser to the federal government and, upon its own initiative, to identify issues of medical care, research, and education. Dr. Harvey V. Fineberg is president of the Institute of Medicine. The National Research Council was organized by the National Academy of Sci- ences in 1916 to associate the broad community of science and technology with the Academy’s purposes of furthering knowledge and advising the federal government. Functioning in accordance with general policies determined by the Academy, the Council has become the principal operating agency of both the National Academy of Sciences and the National Academy of Engineering in providing services to the government, the public, and the scientific and engineering communities. The Council is administered jointly by both Academies and the Institute of Medicine. Dr. Ralph J. Cicerone and Dr. Charles M. Vest are chair and vice chair, respectively, of the National Research Council. www.national-academies.org

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COMMITTEE ON DETERRENCE AND THE DEATH PENALTY DANIEL S. NAGIN (Chair), H. John Heinz III College, Carnegie Mellon University KERWIN K. CHARLES, Harris School of Public Policy Studies, University of Chicago PHILIP J. COOK, Sanford School of Public Policy, Duke University STEVEN N. DURLAUF, Department of Economics, University of Wisconsin–Madison AMELIA M. HAVILAND, H. John Heinz III College, Carnegie Mellon University GERARD E. LYNCH, U.S. Court of Appeals for the Second Circuit CHARLES F. MANSKI, Department of Economics, Northwestern University JAMES Q. WILSON, School of Public Policy, Pepperdine University, and Clough Center for the Study of Constitutional Democracy, Boston College JANE L. ROSS, Study Director JOHN V. PEPPER, Consultant KEIKO ONO, Senior Program Associate CAROL HAYES, Christine Mirzayan Fellow BARBARA BOYD, Administrative Associate v

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COMMITTEE ON LAW AND JUSTICE 2012 JEREMY TRAVIS (Chair), John Jay College of Criminal Justice, City University of New York CARL C. BELL, Community Mental Health Council, Inc., Chicago, IL JOHN J. DONOHUE, III, Stanford Law School, Stanford University MARK A.R. KLEIMAN, Department of Public Policy, University of California, Los Angeles GARY LAFREE, Department of Criminology and Criminal Justice, University of Maryland JANET L. LAURITSEN, Department of Criminology and Criminal Justice, University of Missouri-St. Louis GLENN C. LOURY, Department of Economics, Brown University CHARLES F. MANSKI, Department of Economics, Northwestern University TERRIE E. MOFFITT, Department of Psychology and Neuroscience, Duke University DANIEL S. NAGIN, H. John Heinz III College, Carnegie Mellon University RUTH D. PETERSON, Criminal Justice Research Center, Ohio State University ANNE MORRISON PIEHL, Department of Economics and Program in Criminal Justice, Rutgers University DANIEL B. PRIETO, Public Sector Strategy & Innovation, IBM Global Business Services, Washington, DC ROBERT J. SAMPSON, Department of Sociology, Harvard University DAVID WEISBURD, Department of Criminology, Law and Society, George Mason University CATHY SPATZ WIDOM, Psychology Department, John Jay College of Criminal Justice, City University of New York PAUL K. WORMELI, Integrated Justice Information Systems, Ashburn, VA JANE L. ROSS, Director BARBARA BOYD, Administrative Associate vi

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IN MEMORIAM James Q. Wilson 1931-2012 “I’ve tried to follow the facts wherever they land.” This report is dedicated to James Q. Wilson for his long service to the National Research Council, his influential career of scholarship and public service, and his unblinking commitment to the principle that science requires us to interpret the evidence as it is, not as we want it to be. vii

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Preface M ore than three decades ago, in Deterrence and Incapacitation: Estimating the Effects of Criminal Sanctions on Crime Rates, the National Research Council (NRC) (1978, p. 9) concluded that “available studies provide no useful evidence on the deterrent effect of capital punishment.” That report was issued 2 years after the Supreme Court decision in Gregg v. Georgia ended a 4-year moratorium on execu- tion in the United States. In the 35 years since the publication of that report, especially in recent years, a considerable number of post-Gregg studies have attempted to estimate the effect of the legal status or the actual implemen- tation of the death penalty on homicide rates. Those studies have reached widely varying conclusions. Against this background, the NRC formed the Committee on Deter- rence and the Death Penalty to address whether the available evidence provides a reasonable basis for drawing conclusions about the magnitude of the effect of capital punishment on homicide rates. At a workshop on April 28-29, 2011, workshop papers commissioned by the committee (which will be published in a special issue of the Journal of Quantitative Criminology) were presented and discussed by their authors: Robert J. Apel, University at Albany, State University of New York; Aaron Chalfin, University of Califor- nia, Berkeley; Chao Fu, University of Wisconsin–Madison; Justin McCrary, University of California, Berkeley; Salvador Navarro, University of Western Ontario, Ontario, Canada; John V. Pepper, University of Virginia; and Steven Raphael, University of California, Berkeley. The workshop also included comments on the presentations by Jeffrey Grogger, University of Chicago; Guido Imbens, Harvard University; Kenneth C. Land, Duke ix

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x PREFACE University; Christopher Sims, Princeton University; and Justin Wolfers, University of Pennsylvania. The committee appreciates the contributions of these presenters and those who commented on them to the development of its report. In ad- dition, John V. Pepper provided invaluable assistance to the committee throughout its deliberations. The work of staff members from the Com- mittee on Law and Justice of the NRC facilitated the committee’s work in many ways. Thanks are due to Jane L. Ross, study director; Keiko Ono, senior program associate; Carol Hayes, Christine Mirzayan fellow; and Barbara Boyd, administrative coordinator. Many individuals at the NRC assisted the committee. We thank Kirsten Sampson-Snyder, who shepherded the report through the NRC review pro- cess, Eugenia Grohman, who edited the draft report, and Yvonne Wise, for processing the report through final production. This report has been reviewed in draft form by individuals chosen for their diverse perspectives and technical expertise, in accordance with pro- cedures approved by the NRC’s Report Review Committee. The purpose of this independent review is to provide candid and critical comments that will assist the institution in making its published report as sound as possible and to ensure that the report meets institutional standards for objectivity, evidence, and responsiveness to the study charge. The review comments and draft manuscript remain confidential to protect the integrity of the deliberative process. We thank the following individuals for their review of this report: John Donohue, III, Stanford Law School, Stanford University; Andrew Gelman, Department of Statistics and Department of Political Sci- ence, Columbia University; Kenneth C. Land, Department of Sociology, Duke University; Candice Odgers, School of Social Ecology, University of California, Irvine; Ricardo Reis, Department of Economics, Columbia Uni- versity; Greg Ridgeway, RAND Safety and Justice Program, RAND Center on Quality Policing, RAND Corporation; Robert J. Sampson, Department of Sociology, Harvard University; Dick Thornburgh, Counsel, K&L Gates, LLP, and former Attorney General of the United States; Petra E. Todd, Department of Economics, University of Pennsylvania; and Michael Tonry, School of Law, University of Minnesota, Minneapolis. Although the reviewers listed above have provided many constructive comments and suggestions, they were not asked to endorse the conclusions or recommendations nor did they see the final draft of the report before its release. The review of this report was overseen by Gary LaFree, National Consortium for the Study of Terrorism and Responses to Terrorism, Univer- sity of Maryland, and John T. Monahan, University of Virginia Law School. Appointed by the NRC, they were responsible for making certain that an independent examination of this report was carried out in accordance with institutional procedures and that all review comments were carefully con-

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xi PREFACE sidered. Responsibility for the final content of this report rests entirely with the authoring committee and the institution. This report is dedicated to James Q. Wilson. Jim was a valued member of this and many other NRC committees on which he served over his long and influential career. Jim’s contributions to scholarship and public service will stand as enduring testimony to the power of his intellect. He was a quiet but forceful proponent for balanced and clear-minded assessment of the evidence. I first met Jim in my role as a staff member of the 1978 NRC committee that resulted in report Deterrence and Incapacitation: Estimat- ing the Effect of Criminal Sanctions on Crime Rates. I was deeply impressed by the clarity of his thought and gift for communication. He served as a role model for me ever since. I was thus especially honored that he agreed to serve on this committee, which was greatly aided by his constructive participation throughout our deliberations. Daniel S. Nagin, Chair Committee on Deterrence and the Death Penalty

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Contents SUMMARY 1 Shortcomings in Existing Research, 4 Specification of the Sanction Regime for Homicide, 4 Potential Murderers’ Perceptions of and Responses to Capital Punishment, 5 Strong and Unverifiable Assumptions, 6 Next Steps for Research, 7 References, 8 1 INTRODUCTION 9 The Current Debate, 9 Committee Charge and Scope of Work, 11 References, 14 2 CAPITAL PUNISHMENT IN THE POST-GREGG ERA 15 Executions and Death Sentences Over Time, 15 Use of the Death Penalty, 20 References, 26 3 DETERMINING THE DETERRENT EFFECT OF CAPITAL PUNISHMENT: KEY ISSUES 27 Concepts of Deterrence, 28 Sanction Regimes, 32 xiii

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xiv CONTENTS Data Issues, 36 Variations in Murder Rates, 37 Reciprocal Effects Between Homicide Rates and Sanction Regimes, 41 Summary, 43 References, 44 4 PANEL STUDIES 47 Panel Studies Reviewed, 48 Methods Used: Overview, 48 The Studies, Their Characteristics, and the Effects Found, 49 Specifying the Expected Cost of Committing a Capital Homicide: f(Zit), 54 Model Assumptions, 63 Benefits of Random Assignment, 64 Fixed Effect Regression Model, 65 Instrumental Variables, 66 Homogeneity, 68 Conclusion, 70 References, 71 5 TIME-SERIES STUDIES 75 Basic Conceptual Issues, 76 Execution Event Studies, 76 Studies of Deviations from Fitted Trends, 78 Vector Autoregressions, 82 Evidence Under Existing Criminal Sanction Regimes, 82 Granger Causality and Causality as Treatment Response, 86 Choice of Variables in VAR Studies, 88 Inferences Under Alternative Sanction Regimes, 89 Event Studies, 90 Time-Series Regressions, 92 Cross-Polity Comparisons, 94 Conclusions, 97 References, 99 6 CHALLENGES TO IDENTIFYING DETERRENT EFFECTS 101 Data on Sanction Regimes, 104 Perceptions of Sanction Risks, 105 Measurement of Perceptions, 107 Inference on Perceptions from Homicide Rates Following Executions, 110

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xv CONTENTS Identifying Effects: Feedbacks and Unobserved Confounders, 111 Feedback Effects, 111 Omitted Variables, 112 The Equilibrium Effect, 113 Addressing Model Uncertainty with Weaker Assumptions, 115 Model Averaging, 116 Partial Identification, 119 References, 121 Appendix: Biographical Sketches of Committee Members and Staff 125

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