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Is the Death Penalty a Deterrent?

Guest Blogger: Broden & Mickelsen

The most common justification I hear for the death penalty is that it deters crime. When I consider the hundreds of death penalty cases with which I am familiar, and the dozen or so which I have worked on personally, I am always puzzled by this position. I ask myself, "Have the people that advocate this proposition taken a close look at death penalty defendants?"

Most death penalty defendants are guilty, and in my opinion, most defendants committed their crime as a result of three common factors. First, they are anti-social. In other words, they have an inability to relate normally to fellow human beings. They hold themselves in low regard and hold their fellow man in equally low regard. Second, they have low intelligence. Intelligent anti-social people engage in fraud or selfish business practices. Anti-social people of low intelligence rob a convenient store clerk for a $100 and then kill him unnecessarily because they give no value to his life. Third, the vast majority of death penalty defendants themselves have been the victims of horrendus human behavior in the form of parental abuse or something similar. This may have something to do with why the defendant is anti-social, and generally reinforces the idea in this low intellectually functioning individual that it is better to be the victimizer rather than the victim.

Given these commonalities, it is unlikely that any such individual will be deterred by the death penalty. First, they are simply to ignorant to be aware of such penalties. Second, until immediately confronted with their own death so that their instinctual will to live is invoked, they hold their own lives in low regard and think that the death penalty will be preferable to a lengthy prison sentence. Third, they usually commit their crimes in an angry state of passion, (often partially drug induced), and do not engage in any rational process when it would be necessary for them to do so in order for them to be deterred.

While it appears logical that the death penalty is not a good deterrent empirical evidence does not support the argument that the death penalty deters murder. In the United States there is no reduction in the murder rate of States which impose the death penalty in comparison to those States which do not. Some countries which impose the death penalty have low murder rates, but many countries which do not have even lower murder rates. Some argue that if the United States imposed the death penalty freely and often, for example, for every murder, then one would see a deterrent effect, but this is like arguing if "fishes were wishes." The US Constitution, as interpreted, prevents the automatic imposition of the death penalty, and given the startling number of DNA exonerations, there is no real public support for thousands of executions annually.

Although deterrence is a weak argument in support of the death penalty, rational people can argue that the death penalty serves as a mechanism for the venting of the societal spleen. In other words, one can make a case that some crimes or so horrible that if the death penalty is not imposed societal frustration may build to such an extent that whatever evils may be associated with the death penalty are outweighed by the benefit of this venting. Although I disagree with this analysis, and believe that the imposition of the death penalty cheapens a society's appreciation of the sacredness of life, I suggest this cost/benefit argument so that the overall issue may be discussed more intelligently.

About the Author

Mr. Broden is board certified in the area of criminal law and his practice is limited to criminal defense work. He has received an "AV" rating from Martindale Hubbell, the highest rating available. He was voted by his peers as a "Super Lawyer" in criminal defense in 2004, 2005, 2006 and 2007. Although he handles all types of criminal cases, Mr. Broden specializes in complex, criminal cases in federal court at both the trial and appellate level.

Mr. Mickelsen is board certified in criminal law, a lifetime member of the National Association of Criminal Defense Lawyers Association, a board member of the Texas Criminal Defense Lawyers Association, a member of the Dallas County Criminal Defense Lawyers Association, and a member of the Dallas County Bar Association. Mr. Mickelsen is "AV" rated by Martindale Hubbell, an independent evaluation which identifies a lawyer with "very high to preeminent legal ability". He was also voted by his peers as a "Super Lawyer" in criminal defense in 2004, 2005, 2006 and 2007. He is currently a member of the board of the Texas Criminal Defense Lawyer's Association.

Mr. Mickelsen is a member of the adjunct faculty at Southern Methodist University Law School where he teaches trial advocacy.

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Broden & Mickelsen - Criminal Defense Lawyers


  1. Deterrence

    All prospects of a negative outcome deter some. It is a truism. The death penalty, the most severe of criminal sanctions, is the least likely of all criminal sanctions to violate that truism.

    1) 25 recent studies finding for deterrence, Criminal Justice Legal Foundation,

    2) "Deterrence and the Death Penalty: A Reply to Radelet and Lacock"

    4) "Death Penalty, Deterrence & Murder Rates: Let's be clear"

    5) This is out of date, but corrects an number of the misconceptions about deterrence.

    "Death Penalty and Deterrence"

    6) "The Death Penalty: More Protection for Innocents"

  2. Deterrence & The Death Penalty
    Dudley Sharp, contact info below

    All prospects of a negative outcome deter some. It is a truism. The death penalty, the most severe of criminal sanctions, is the least likely of all criminal sanctions to violate that truism.

    No matter the level of violent crime, be it high or low, legal sanctions deter some from committing crimes (1).

    Based upon some recent deterrence studies, even "heat of the moment" murders can be prevented by deterrence (2). No matter how excited or enraged, most of us bring ourselves back from that abyss, to a more sensible approach. One reason for that is deterrence, either thoughtful or instinctive.

    Most criminals do think about things. That is why, before their crimes, the usually choose locations other than police stations to commit them. Criminals nearly always use some form of stealth before and during the crime, to avoid witnesses and to lower the probability of being caught, just as they use such stealth to withdraw after the crime.

    We know this to be true.

    Such is based upon a fear of being apprehended. There is no fear of being caught unless there is a fear of sanction. Only sanction can put fear into being caught.

    There are those who argue the death penalty is no greater a deterrent than a life sentence.

    Even if the death penalty is only equal in value as a life sentence, as a deterrent, then the death penalty is an important deterrent.

    There are several major tiebreakers in this "equality".

    First, look at murderers not deterred. About 99.9% of all of those murderers who face the death penalty either plea bargain to a life or lesser sentence, go to trial seeking a life sentence, not death, in the punishment phase of their trials and fight a, seemingly, never ending appellate battle to stay alive while they are on death row.

    Reason tells us that if 99.9% of a less rational group, those who commit murders, fear death more than life, that there must be some, more rational folks, those potential murderers who chose not to murder because they feared death more than life.

    Do the experts denouncing deterrence say "the death penalty deters no one? Of course not. They can't.

    There are a number of real life stories of potential murderers who have stated that it was the death penalty that prevented them from committing murder. This is known as the individual deterrent effect. In these cases, the death penalty was an enhanced deterrent over a life sentence. Meaning these were cases whereby the potential murders were deterred from murdering because of the death penalty, who would not, otherwise, have been deterred by a lesser sanction. (3)

    In addition, individual, enhanced deterrence cannot exist without general, enhanced deterrence. Therefore, there is a general, enhanced deterrent, because individual deterrence could not exist without the general deterrent effect. (3)


  3. contd

    If we are unsure about deterrence, there is no "equality" in the results of our choices.

    If there is deterrence and we execute, we save innocent lives via deterrence and by preventing murderers from ever harming again. If there is deterrence and we fail to execute, we sacrifice more innocent lives by reduced deterrence and, additionally, we put more innocents at risk, because living murderers are always more likely to harm again, than are executed ones. If there is no deterrence and we execute, we protect more innocents because of enhanced incapacitation. If there is no deterrence and we don't execute, more innocents are at risk because the murderers are still alive. (3)

    I repeat my position that it is irrational to say that none are deterred by the death penalty.

    The weight of the evidence is that the death penalty is an enhanced deterrent over a life sentence and any deterrence is significant in that it spares innocent lives.

    If unsure about execution deterrence, the "risk" is saving innocent lives by the deterrence of execution vs the "risk" of not saving innocent lives and choosing not to execute. The risk to take is to execute, to save innocent lives that deserve to be saved. (4)

    We do not execute or impose other sanctions based upon deterrence. We must base sanctions on them being a just and appropriate response to the crimes committed, the same foundation of support used for all criminal sanctions.

    The reason for sanction is justice. Deterrence is a secondary reason for and a beneficial by-product of all sanctions, inclusive of the death penalty.

    (1) "Death Penalty, Deterrence & Murder Rates: Let's be clear"

    (2) 25 recent studies finding for deterrence, Criminal Justice Legal Foundation

    (3) This is a bit out of date, but corrects an number of the misconceptions about deterrence.
    "Death Penalty and Deterrence"

    (4) "The Death Penalty: More Protection for Innocents"

    Other Links:

    "A Death Penalty Red Herring: The Inanity and Hypocrisy of Perfection", Lester Jackson Ph.D.,

    "Deterrence and the Death Penalty: A Reply to Radelet and Lacock"

    "The Innocent Executed: Deception & Death Penalty Opponents"

    The 130 (now 139) death row "innocents" scam


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