The modem debate on deterrence and capital punishment, now in its fourth decade, was launched by two closely timed events. The first was the 1976 United States Supreme Court decision in Gregg v. Georgia, which restored capital punishment after its brief constitutional ban following Furman v. Georgia in 1972. In 1975, Professor Isaac Ehrlich published an influential article saying that during the 1950s and 1960s, each execution averted eight murders. Although Ehrlich's article was a highly technical study prepared for an audience of economists, its influence went well beyond the economics profession. Ehrlich's work was cited favorably in Gregg and later was cited in an amicus brief filed by the U.S. Solicitor General in Fowler v. North Carolina. No matter how carefully Ehrlich qualified his conclusions, his article had the popular and political appeal of a headline, a sound bite, and a bumper sticker all rolled into one: "every execution deters eight killings."
Reaction was immediate: Ehrlich's findings were sharply disputed in academic forums such as the Yale Law Journal, launching an era of contentious arguments in the press and in professional journals. In 1978, an expert panel appointed by the National Academy of Sciences issued strong criticisms of Ehrlich's work. Over the next two decades, economists and other social scientists attempted (mostly without success) to replicate Ehrlich's results using different data, alternative statistical methods, and other design modifications that tried to address glaring errors in Ehrlich's techniques and data. The accumulated scientific evidence from the NAS report and these later studies weighed heavily against the claim that executions deter murders.
Criminal Law | Criminal Procedure | Law | Law and Society
Jeffrey Fagan, Franklin Zimring & Amanda Geller,
Capital Punishment and Capital Murder: Market Share and the Deterrent Effects of the Death Penalty,
Texas L. Rev.
Available at: https://scholarship.law.columbia.edu/faculty_scholarship/1424