EC 322 – Economics of Law:
To: Dr. Azim Essaji
April 5th, 2013
When understanding criminal law it is important to consider the positive and negative effects that different punishment alternatives can have. Over the last century the use of capital punishment, the legal process for which an individual is sentence to death when found guilty of committing a crime, has been a subject debated back and forth between government parties on its effectiveness. Many people believe that the issues of fairness, constitutionality, morality of an individual’s life, and potential of convicting the innocent are too important to allow the use of the death penalty (Giarratano 1991). While others argue that it holds many positive aspects including deterrence, retribution, incapacitation, and lowering the crime rate (Spangenberg and Walsh 1989). Arguing in this paper is that the use of capital punishment is the most effective alternative to deter criminal activity, but at a much higher cost to society.
The type of punishment chosen when convicting a criminal is very important. The government needs to make sure they are using the resources they have most effectively to be able to reduce criminal activity and allow for higher social gains. They first can go about doing this first by trying to prevent criminal activity in the first place. Greater employment is associated with lower levels of arrest (Grogger 1991) meaning that government should be focused on creating more jobs and employment opportunities. Other ways to help minimize the social cost of crime can be through economic and social factors including income maintenance, family counselling, mental health programs, and drug and alcohol counselling (Cooter and Ulen 2012). The secondary efforts they should be focused on to reduce criminal activity already committed is to deter less experienced, younger offenders in the chance to catch them at an early stage in their criminal life cycle (Grogger 1991). By creating a sanction strategy to impose costs to young offenders and make sure that it will not damage future employment opportunities for them, it will allow a reduction in a cost to society for both the offender’s future chance of criminal activity and future imprisonment costs (Grogger 1991). By determining these factors, the government will be able to find the most effective form of punishment for a crime committed.
One of the main arguments supporting capital punishment is the strong ability it has on deterring criminal activity. The gains associated with capital punishment are the affect it can have on effectively deterring criminals from not only murderer, but any serious crime (Cameron 1989). It is used as an intimidation factor for which people weigh the cost and benefits of their actions, and in a case where the cost is their life, the probability of them committing a crime will decrease (Shepherd 2004). The significant relationship it shares with the homicide rate has been found that 150 fewer homicides take place in reaction to one execution happening to a convicted murderer (Cooter and Ulen 2012). Looking at this relationship directly from an economic perspective, capital punishment can be seen as a commodity; an increase in it leads to an increase in consumer welfare as it decreases the chance of another victim being murdered (Cameron 1993). The effect that deterrence has on society is seen as a public good as well because of the positive, widespread affect it has on a larger number of consumers by increases their safety and security. By increasing the amount of resources the government puts towards conviction and punishment for criminal activities, it will allow for a reduction in harm (Cooter and Ulen 2012) and allow the demand for protection and a safer environment to be met. Capital punishment is the strongest alternative of punishment to create the largest deterrent affect in criminal activity and create a safer environment for everyone.
A large variable that has been found to have a strong influence in deterring criminal activity is the amount of time from when an offender is found guilty to when they are executed. Research has concluded that shorter wait times on death row lead to an increase in the deterrence of crime, especially when offenders request for numerous extensions in the length of time on death row have been denied (Shepherd 2004). They also found that one murder does not occur for every 2.75-year reduction in the expected wait on death row. Due to this strong causal relationship, the length of time spend in jail before execution was decreased in 1996 and the courts created severe restrictions and limitations on an offenders ability to appeal their death sentence (Shepherd 2004). As a result to this decrease, not only did it allow for lower crime rates, but it reduced the choice that individuals made of committing a crime of passion because of the increase in expected costs of murder leading to death. This relationship shows how strong the effect of capital punishment and execution delay times can have on murder rates and the positive effect it can bring upon a society.
When determining the optimal level of punishment to allow for the highest social benefits, the government needs to take into consideration the severity of the crime, potential fines to the offender, and the cost to society. Crime rates are negatively related to the probability and severity of punishment meaning that optimal levels of punishment are directly related to these variables (Cook 2009). It is hard to determine the exact level of optimal punishment, especially when it comes to capital punishment, because of the value attached to executing an individual and the cost to value their life at. The demand of the rate of execution also is greatly depended on the level of homicides and crimes committed, both are variables that are hard to predict specifically (Cameron 1993). Not only that but the same sentencing imposed on different offenders can cause very different costs and asks the question of whether the death penalty is a measurable deterrent (Cook 2009). Therefore it is concluded by some that the optimal level of capital punishment is zero (Cameron 1989). While others argue that the optimal amount of capital punishment can be calculated by looking at the total social benefit that will be equal to the value that people put on the probability of being saved from becoming a murder victim (Cameron 1989). If this calculated optimal amount is greater then the losses that arise through the use of the death penalty, then capital punishment can be seen as a positive benefit to society. Sometimes the optimal level of capital punishment may be to execute only some individuals found guilty, which creates the problem of inequality for criminals. The death penalty is often more likely to be sentenced to offenders who have a larger number of years left to their life in order to minimize imprisonment costs (Cameron 1989). However being able to create a value of the cost of murder or rape would be infinite, and thus not allow for an optimal amount of compensation for the crime to be achieved (Cameron 1989). To conclude, finding a socially optimal level of capital punishment is an intense and a difficult process to achieve and many different factors need to be taken into consideration.
The cost of capital punishment is a growing concern as it produces the highest individual cost of all punishment options (Belova and Gregory (2009). These costs include but are not limited to attorney fees, capital case expenses, higher level of imprisonment security, and maintenance costs. The biggest costs that the state endures from capital cases are the cost of court times and imprisonment costs. The cost of holding an offender convicted of murder on death row plus the cost of execution is six times that of housing that individual in jail until they die from natural causes (Spangenberg and Walsh 1989). This is because the average time a prisoner spends on death row is eight years, in which time they are held in a maximum-security jail creating much greater time and effort expenses. Offenders are unable to be employed to work for the prison in order to repay the state for costs of the crime committed. This allows them to add little to no revenue for the prison compared to the lifetime income they would be required to give through imprisonment (Cooter and Ulen 2012). The extreme stress that the acknowledgment of death row has on the mental state these individuals will create higher psychological and psychiatric costs (Cooter and Ulen 2012). The social costs of capital cases are an average of $2 million (Cooter and Ulen 2012), which include costs of law enforcement, prosecution, courts, judges, public defenders, and investigators. Although these are all normal expenses for courts cases, capital cases take up to three and a half times longer and the number of hours attorneys spend on each level of proceeding is much higher compared to non-capital cases (Spangenberg and Walsh 1989). Not only this but an offender sentenced to the death penalty is entitled to have a court appeal will the highest level of state too allow for potential corrections the lower courts made. All of these factors directly support the argument of how high the cost of capital punishment is in relation to other punishment alternatives.
Although capital punishment allows for lower crime rates and works as an effective deterrent, it comes at a much higher cost to society then other forms of punishment, focused directly on the main alternative of imprisonment. Imprisonment allows for all the same social benefits of capital punishment including deterrence, retribution, incapacitation, lower crime rates, as well as rehabilitation (Cooter and Ulen 2012). By increasing the length of prison time, economic rationality based mindset clearly shows that it will have a direct affect on reducing the crime rate (Grogger 1991). By allowing for imprisonment instead of execution, the higher probability of conviction and imprisonment lead to lower amounts of arrests when offenders were let out of jail after they finished serving their time (Cooter and Ulen 2012). This can also be supported because it was found that a majority of murderers would not repeat their criminal actions again as many crimes were either accidental or negligent (Cameron 1989). However, if the death sentence were given to these guilty offenders, then the chance of having a life again out of jail would never be an option. Similarly, imprisonment can be seen as a more positive alternative to the death penalty in cases where an offender is found guilty. Both punishment methods have benefits to them and can be argued different ways, but in the case of what is found to be morally ethical people would chose life-long imprisonment for guilty murderers.
People believe that capital punishment should not be allowed due to the possibility of convicting an innocent person to death. Innocent people that are found guilty for a crime and are executed as a result will suffer an infinite loss of welfare, leading to a fall in the level of optimal capital punishment (Cameron 1989). Not only this but it adds a cost to society as people will pay more to prove themselves innocent as the real offenders will gain because their expected probability of punishment will decrease; this is know as the innocence externality theory (Cameron 1989). Since the turn of the century it has been found that at least 23 people have been wrongfully executed (Giarratano 1991) with the possibility of more that are unknown, all of which will not be able to receive compensation in exchange for the wrongful doing. These mistakes have happened due to reasons including misleading and suppressed evidence, untrustworthy confessions, perjury, mistaken eyewitnesses, or an incompetent defence counsel (Giarratano 1998). Many of these mistakes could have been corrected with a longer execution delay, but legislation believed that lowering this delay has more of a positive impact on social costs and was therefore decreased in 1996 as stated above (Shepherd 1004). Even though capital punishment can decrease the crime rate, the risk of executing even one innocent person should be a large enough reason to consider implementing other forms of strict punishment.
Based on most research found, capital punishment has a positive affect on its ability to lower criminal activity and create higher social benefits. However, a few studies support the opposite argument in stating that the death penalty increases criminal activity. The first reason behind this is because the brutality of executions create more incentive for strange, criminal activities, mostly surrounding murders (Shepherd 2004). The brutalization theory suggests that when the government takes someone’s life through execution, it lowers the respect they have for life and promotes further violence (Cameron 1989). In the same context another argument is the perverse deterrence argument saying that some people will randomly commit murder with no motive in order to receive the death penalty (Cameron 1989). Both of these cases will lead to a lower optimal level of capital punishment and as a result lowering the social benefits for society. Although some believe that capital punishment will create more of an incentive for crime, most studies support to argument that it does help to alleviate the problem and lead to more deterrence in criminal activity.
In conclusion, the affect of capital punishment has a strong relationship in its ability to deter criminal activity. By using this most sever form of punishment in response for a serious crime done including rape and murder, it creates an intimidation factor for which individuals will weigh the cost of their life to the benefit of committing a crime. The other factor found to significantly reduce crime rates within a society are to lower execution delay times. Although capital punishment allows for lower criminal activity and a safer environment, it comes at a higher cost to society. The cost of capital punishment is higher then that of imprisonment and any other form of punishment because of the cost to hold offenders in maximized-security facilities in which they are not permitted to work in that time. Other problems that are negatively related to capital punishment are the chance of executing an innocent person found guilty in which case no sort of compensation will be achieved, and the few studies found that capital punishment increases the likelihood of criminal activity. Capital punishment can be argued fairly as both a negative and positive to society, and as a result has always been a form of punishment taken in and out of usage though different levels of government.
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