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inquiries 108 and by the experience of other countries.10s Despite problems with the statistics,110 Sellin's evidence has been relied upon in international studies of capital punishment.111

Statistics also show that the deterrent effect of capital punishment is no greater in those communities where executions take place than in other communities.112 In fact, there is some evidence that imposition of capital punishment may actually encourage crime, rather than deter it.113 And, while police and law enforcement offi

108 See, e. g., Guillot, Abolition and Restoration of the Death Penalty in Missouri, in Bedau, supra, n. 45, at 351, 358-359; Cobin, Abolition and Restoration of the Death Penalty in Delaware, in Bedau, supra, at 359, 371-372.

109 Sellin, supra, n. 98, at 38-39; Royal Commission, supra, n. 84, at 353; United Nations, supra, n. 77, ¶¶ 130-136, at 116-118.

110 One problem is that the statistics for the 19th century are especially suspect; another is that de jure abolition may have been preceded by de facto abolition which would have distorted the figures. It should also be noted that the figures for several States reflect homicide convictions rather than homicide rates.

111 Royal Commission, supra, n. 84, ¶ 65, at 23; 346-349; United Nations, supra, n. 77, ¶ 132, at 117.

112 Hayner & Cranor, The Death Penalty in Washington State, 284 Annals Am. Acad. Pol. & Soc. Sci. 101 (1952); Graves, A Doctor Looks at Capital Punishment, 10 Med. Arts & Sci 137 (1956); Dann, The Deterrent Effect of Capital Punishment, Bull. 29, Friends Social Service Series, Committee on Philanthropic Labor and Philadelphia Yearly Meeting of Friends (1935); Savitz, A Study in Capital Punishment, 49 J. Crim. L. C. & P. S. 338 (1958); United Nations, supra, n. 77, ¶ 135, at 118.

113 Graves, supra, n. 112; Hearings, supra, n. 80, at 23 (testimony of C. Duffy), 126 (statement of Dr. West); T. Reik, The Compulsion to Confess 474 (1959); McCafferty, Major Trends in the Use of Capital Punishment, 25 Fed. Prob., No. 3, p. 15 (Sept. 1961). Capital punishment may provide an outlet for suicidal impulses or a means of achieving notoriety, for example.

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cers are the strongest advocates of capital punishment,1 the evidence is overwhelming that police are no safer in communities that retain the sanction than in those that have abolished it.115

There is also a substantial body of data showing that the existence of the death penalty has virtually no effect on the homicide rate in prisons.1 116 Most of the persons sentenced to death are murderers, and murderers tend to be model prisoners.'

114 See, e. g., Gerstein, A Prosecutor Looks at Capital Punishment, 51 J. Crim. L. C. & P. S. 252 (1960); Hoover, Statements in Favor of the Death Penalty, in Bedau, supra, n. 45, at 130; Younger, Capital Punishment: A Sharp Medicine Reconsidered, 42 A. B. A. J. 113 (1956). But see, Symposium on Capital Punishment, District Attorneys' Assn. of State of New York, Jan. 27, 1961, 7 N. Y. L. F. 249, 267 (1961) (statement of A. Herman, head of the homicide bureau of the New York City District Attorney's office).

115 Sellin, supra, n. 98, at 56-58; Koeninger, Capital Punishment in Texas, 1924-1968, 15 Crime & Delin. 132 (1969); Sellin, Does the Death Penalty Protect Municipal Police, in Bedau, supra, n. 45, at 284; United Nations, supra, n. 77, ¶ 136, at 118.

116 L. Lawes, Life and Death in Sing Sing 150 (1928); McGee, Capital Punishment as Seen by a Correctional Administrator, 28 Fed. Prob., No. 2, p. 11 (June 1964); 1950 Survey of the International Penal and Penitentiary Commission, cited in Sellin, supra, n. 98, at 70-72; Sellin, Prisons Homicides, in Capital Punishment 154 (T. Sellin ed. 1967); cf. Akman, Homicides and Assaults in Canadian Prisons, in Capital Punishment, supra, at 161-168. The argument can be made that the reason for the good record of murderers is that those who are likely to be recidivists are executed. There is, however, no evidence to show that in choosing between life and death sentences juries select the lesser penalties for those persons they believe are unlikely to commit future crimes.

117 E. g., United Nations, supra, n. 77, ¶ 144, at 119; B. Eshelman & F. Riley, Death Row Chaplain 224 (1962). This is supported also by overwhelming statistics showing an extremely low rate of recidivism for convicted murderers who are released from prison. Royal Commission, supra, n. 84, App. 15, at 486-491; Sellin, supra, n. 98, at 72-79; United Nations, supra, n. 77, ¶ 144, at 119.

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In sum, the only support for the theory that capital punishment is an effective deterrent is found in the hypotheses with which we began and the occasional stories about a specific individual being deterred from doing a contemplated criminal act.1 These claims of specific deterrence are often spurious,119 however, and may be more than counterbalanced by the tendency of capital punishment to incite certain crimes.120

The United Nations Committee that studied capital punishment found that "[i]t is generally agreed between the retentionists and abolitionists, whatever their opinions about the validity of comparative studies of deterrence, that the data which now exist show no correlation between the existence of capital punishment and lower rates of capital crime." 121

Despite the fact that abolitionists have not proved non-deterrence beyond a reasonable doubt, they have succeeded in showing by clear and convincing evidence that capital punishment is not necessary as a deterrent to crime in our society. This is all that they must do. We would shirk our judicial responsibilities if we failed to accept the presently existing statistics and demanded more proof. It may be that we now possess all the proof that anyone could ever hope to assemble on the subject. But, even if further proof were to be forthcoming, I believe there is more than enough evidence presently available for a decision in this case.

In 1793 William Bradford studied the utility of the death penalty in Pennsylvania and found that it probably had no deterrent effect but that more evidence

118 See, e. g., The Question of Deterrence, in Bedau, supra, n. 45, at 267.

119 Ibid. and n. 11; Note, The Death Penalty Cases, 56 Calif. L. Rev. 1268, 1282-1283 (1968).

120 See n. 113, supra.

121 United Nations, supra, n. 77, ¶ 159, at 123.

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was needed.122 Edward Livingston reached a similiar conclusion with respect to deterrence in 1833 upon completion of his study for Louisiana.123 Virtually every study that has since been undertaken has reached the same result.124

In light of the massive amount of evidence before us, I see no alternative but to conclude that capital punishment cannot be justified on the basis of its deterrent effect.12

125

122 See nn. 58 and 59, supra, and accompanying text. 123 See n. 62, supra, and accompanying text.

124 Graves, A Doctor Looks at Capital Punishment, 10 Med. Arts. & Sci. 137 (1956); Royal Commission, supra, n. 84, ¶ 60, at 20-21; Schuessler, The Deterrent Influence of the Death Penalty, 284 Annals Am. Acad. Pol. & Soc. Sci. 54 (1952); United Nations, supra, n. 77, ¶ 142, at 119; M. Wolfgang, Patterns in Criminal Homicide (1958). One would assume that if deterrence were enhanced by capital punishment, the increased deterrence would be most effective with respect to the premeditating murderer or the hired killer who plots his crime before committing it. But, such people rarely expect to be caught and usually assume that if they are caught they will either be acquitted or sentenced to prison. This is a fairly dependable assumption since a reliable estimate is that one person is executed for every 100 capital murders known to the police. Hart, Murder and the Principles of Punishment: England and the United States, 52 Nw. U. L. Rev. 433, 444-445 (1957). For capital punishment to deter anybody it must be a certain result of a criminal act, cf. Ex parte Medley, 134 U. S. 160 (1890), and it is not. It must also follow swiftly upon completion of the offense and it cannot in our complicated due process system of justice. See, e. g., The Question of Deterrence, in Bedau, supra, n. 45, at 258, 271272; DiSalle, Trends in the Abolition of Capital Punishment, 1969 U. Toledo L. Rev. 1, 4. It is ironic that those persons whom we would like to deter the most have the least to fear from the death penalty and recognize that fact. Sellin, Address for Canadian Society for Abolition of the Death Penalty, Feb. 7, 1965, in 8 Crim. L. Q. 36, 48 (1966); Proceedings of the Section of Criminal Law of the ABA, Aug. 24, 1959, p. 7 (M. DiSalle).

125 In reaching this conclusion, I maintain agreement with that portion of Stephen's hypothesis that suggests that convicted crim

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C. Much of what must be said about the death penalty as a device to prevent recidivism is obvious—if a murderer is executed, he cannot possibly commit another offense. The fact is, however, that murderers are extremely unlikely to commit other crimes either in prison or upon their release.126 For the most part, they are first offenders, and when released from prison they are known to become model citizens.127 Furthermore, most persons who commit capital crimes are not executed. With respect to those who are sentenced to die, it is critical to note that the jury is never asked to determine whether they are likely to be recidivists. In light of these facts, if capital punishment were justified purely on the basis of preventing recidivism, it would have to be considered to be excessive; no general need to obliterate all capital offenders could have been demonstrated, nor any specific need in individual cases.

D. The three final purposes which may underlie utilization of a capital sanction-encouraging guilty pleas and confessions, eugenics, and reducing state expenditures-may be dealt with quickly. If the death penalty is used to encourage guilty pleas and thus to deter suspects from exercising their rights under the Sixth Amendment to jury trials, it is unconstitutional. United States

inals fear death more than they fear life imprisonment. As I stated earlier, the death penalty is a more severe sanction. The error in the hypothesis lies in its assumption that because men fear death more than imprisonment after they are convicted, they necessarily must weigh potential penalties prior to committing criminal acts and that they will conform their behavior so as to insure that, if caught, they will receive the lesser penalty. It is extremely unlikely that much thought is given to penalties before the act is committed, and even if it were, the preceding footnote explains why such thought would not lead to deterrence.

126 See n. 117, supra.

127 See, e. g., Royal Commission, supra, n. 84, App. 15, at 486-491.

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