The Deterrence Argument Tested

In one line

The deterrence claim is the retentionist's most popular argument and its weakest, and the reason is that the comparison that matters is death against life imprisonment and not death against nothing.

In the wording a student can write in an exam: the claim that capital punishment deters murder better than the alternative has not been established. Three reasons are usually given: the comparison required is a marginal one, between death and a long sentence, and no study has demonstrated the marginal difference; murder is very often committed in circumstances of rage, intoxication or desperation in which no calculation occurs, so the marginal severity has nothing to act upon; and in India the penalty is so rarely carried out that whatever deterrent force it has must operate through a sanction almost never imposed.

The claim, stated fairly

The retentionist does not say that everybody is deterred. The claim is that at the margin some potential offenders who would risk imprisonment for life will not risk death, and that each of them is a life saved. That is a modest claim and it deserves a serious answer.

It also has an intuitive attraction that should be conceded rather than dismissed: almost everybody would prefer a long sentence to death, so a penalty people fear more ought to deter more.

Why the intuition fails

1. The comparison is marginal, not absolute

The question is never whether punishing murder deters better than not punishing it. The alternative on the table is imprisonment for life, and since Swamy Shraddananda alias Murali Manohar Mishra v. State of Karnataka, (2008) 13 SCC 767, imprisonment for the whole of a natural life.

So the deterrence question is: does death deter better than that? And the studies which purport to show that capital punishment deters have generally not isolated that comparison. Comparisons between abolitionist and retentionist jurisdictions, and studies of states that have abolished and then restored, have not shown the changes in homicide the claim predicts.

2. Deterrence requires a calculating offender

The four conditions in [The Deterrent Theory] have to hold. The offender must know the penalty, believe detection is likely, be calculating at the time, and have an alternative.

Murder frequently fails the third. A killing on sudden provocation, in intoxication, within a family, or by a person who does not expect to survive the act, is not the product of the cost and benefit reasoning the model assumes. The offences the death penalty is reserved for are, by the definition of the rarest of rare test, extreme, and extreme conduct is less likely to be calculated than ordinary conduct.

3. The penalty is almost never carried out

This is the point specific to India and it is the strongest.