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Tuesday, June 16, 2009

News: Death penalty not a deterrent

The death penalty is not a deterrent to crime, according to the vast majority (88%) of criminologists, according to a survey published by Northwestern University School of Law's Journal of Criminal Law and Criminology.

This comes as no surprise to anyone familiar with the precepts of Borenstein's Law. Since most criminals do not think far enough ahead to anticipate the consequences of their crimes, they cannot be deterred from committing them. To qualify for the penalty, the law doesn't even distinguish between people who kill intentionally, recklessly, negligently or accidentally during while committing other felonies.

The law often uses concepts like "the reasonable person", foreseeability, "natural and probable consequences" and other general notions related to the traditional requirements of culpable mental states. These legal fictions impute to human beings rational thought processes that rarely apply in real life and death situations.

The typical homicidal person is an impulsive risk taker whose anticipation of results extends only to the immediate goal of revenge, hatred, fear, lust, rage, escape, or greed.

When "use a gun, go to prison" was implemented, not one potential robber declined the chance to rob because of the inevitable punishment awaiting. Nor did any robber decide to rob without using a gun for the very logical reason that robberies are easier to complete when a gun is used.

Of course, as prison sentences for robbers became pervasive and lengthy, the prisons began to fill. Subsequent laws imposing prison sentences for a wide variety for felons - including small time drug users and dealers, petty thieves with felon histories - filled the prisons to bursting. These laws did deter these people from committing crimes, at least while they were incarcerated. In that sense, such laws did deter, but at enormous cost and in the least efficient way a civilized nation could imagine.

Those who argue for death as a deterrent to future crime are right in arguing that the person executed will not commit another crime, but the same could be said of a life prisoner. Jurors get this idea. When given a choice of life without parole, juries rarely impose death sentences.

The deterrence argument is complicated by the proven fact that predictions of future dangerousness, whether made by criminologists, sociologists, psychiatrists, police officers, prosecutors, judges, prison officials, or parole boards, are totally unreliable. Long term studies have shown that such predictions are no better than those made by a coin toss.

Nonetheless, our society makes policy in this area without regard to the facts. Influenced by anecdotal cases of recidivist horrors reported by media and vengeance seeking victims advocate groups, the law is made from the same motivations as those that impel the killers it targets: revenge, hatred, fear, rage - certainly not the acts of the "reasonable person".

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