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THE JOURNAL OF

CRIMINAL LAW, CRIMINOLOGY AND POLICE SCIENCE

Copyright 0 1969 by Northwestern University School of Law

Vol. 60, No. 2
Printed in U.S.A.

The Journal of

CRIMINAL LAW, CRIMINOLOGY AND POLICE SCIENCE

Vol. 60 June 1969 No. 2

ON

DETERRENCE AND THE DEATH PENALTY

ERNEST VAN DEN HAAG

The author is presently Adjunct Professor of Social Philosophy at New York University; lecturer
in Sociology and Psychology at the Graduate and Undergraduate Faculties of The New School for So-
cial Research; and Visiting Professor at Vassar College. He formerly held positions on the faculties at
City College of New York, Brooklyn College (Graduate Division), and the Universities of Minnesota,
Nevada, and Colorado.

Professor van den Haag received an M.A. degree from the State University of Iowa and earned the
Ph.D. degree from New York University. He also studied at the Universities of Florence, Naples and
Sorbonne.

The author is a practicing psychoanalyst. He is a Fellow in the American Sociological Ass’n and the
Royal Economic Society, and was a Guggenheim Fellow in 1967. His many published works include
three books.

(This article is a revision of one which appeared originally in Ethics.)

I

If rehabilitation and the protection of society
from unrehabilitated offenders were the only
purposes of legal punishment the death penalty
could be abolished: it cannot attain the first end,
and is not needed for the second. No case for the
death penalty can be made unless “doing justice,”
or “deterring others,” are among our penal aims.1
Each of these purposes can justify capital punish-
ment by itself; opponents, therefore, must show
that neither actually does, while proponents can
rest their case on either.

Although the argument from justice is intellec-
tually more interesting, and, in my view, decisive

enough, utilitarian arguments have more appeal:
the claim that capital punishment is useless be-
cause it does not deter others, is most persuasive.
I shall, therefore, focus on this claim. Lest the

argument be thought to be unduly narrow, I shall
show, nonetheless, that some claims of injustice
rest on premises which the claimants reject when

arguments for capital punishment are derived

therefrom; while other claims of injustice have no

independent standing: their weight depends on
the weight given to deterrence.

1 Social solidarity of “community feeling” (here to be
ignored) might be dealt with as a form of deterrence.

II

Capital punishment is regarded as unjust be-
cause it may lead to the execution of innocents, or
because the guilty poor (or disadvantaged) are
more likely to be executed than the guilty rich.

Regardless of merit, these claims are relevant
only if “doing justice” is one purpose of punish-
ment. Unless one regards it as good, or, at least,
better, that the guilty be punished rather than
the innocent, and that the equally guilty be
punished equally,2 unless, that is, one wants
penalties to be just, one cannot object to them
because they are not. However, if one does in-
clude justice among the purposes of punishment,
it becomes possible to justify any one punish-
ment-even death-on grounds of justice. Yet,
those who object to the death penalty because of
its alleged injustice, usually deny not only the
merits, or the sufficiency, of specific arguments
based on justice, but the propriety of justice as an
argument: they exclude “doing justice” as a
purpose of legal punishment. If justice is not a
purpose of penalties, injustice cannot be an
objection to the death penalty, or to any other;
if it is, justice cannot be ruled out as an argument
for any penalty.

2Certainly a major meaning of suum cuique tribue.
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ERNEST VAN DEN HAAG

Consider the claim of injustice on its merits
now. A convicted man may be found to have been

innocent; if he was executed, the penalty cannot
be reversed. Except for fines, penalties never can
be reversed. Time spent in prison cannot be re-
turned. However a prison sentence may be re-
mitted once the prisoner serving it is found inno-

cent; and he can be compensated for the time
served (although compensation ordinarily cannot

repair the harm). Thus, though (nearly) all

penalties are irreversible, the death penalty, un-
like others, is irrevocable as well.

Despite all precautions, errors will occur in

judicial proceedings: the innocent may be found

guilty;3 or the guilty rich may more easily escape
conviction, or receive lesser penalties than the

guilty poor. However, these injustices do not reside
in the penalties inflicted but in their maldistribu-
tion. It is not the penalty–whether death or

prison-which is unjust when inflicted on the

innocent, but its imposition on the innocent. In-

equity between poor and rich also involves distribu-

tion, not the penalty distributed.4 Thus injustice
is not an objection to the death penalty but to the
distributive process-the trial. Trials are more

likely to be fair when life is at stake-the death

penalty is probably less often unjustly inflicted
than others. It requires special consideration not
because it is more, or more often, unjust than
other penalties, but because it is always irrevocable.

Can any amount of deterrence justify the possi-
bility of irrevocable injustice? Surely injustice is

unjustifiable in each actual individual case; it must
be objected to whenever it occurs. But we are
concerned here with the process that may produce
injustice, and with the penalty that would make it
irrevocable-not with the actual individual cases

produced, but with the general rules which may
produce them. To consider objections to a general
rule (the provision of any penalties by law) we
must compare the likely net result of alternative
rules and select the rule (or penalty) likely to
produce the least injustice. For however one
defines justice, to support it cannot mean less
than to favor the least injustice. If the death of
innocents because of judicial error is unjust, so
is the death of innocents by murder. If some

3 I am not concerned here with the converse injustice,
which I regard as no less grave.

4 Such inequity, though likely, has not been demon-
strated. Note that, since there are more poor than rich,
there are likely to be more guilty poor; and, if poverty
contributes to crime, the proportion of the poor who
are criminals also should be higher than that of the rich.

murders could be avoided by a penalty conceiv-
ably more deterrent than others-such as the
death penalty–then the question becomes: which
penalty will minimize the number of innocents
killed (by crime and by punishment)? It follows
that the irrevocable injustice, sometimes inflicted
by the death penalty would not significantly
militate against it, if capital punishment deters
enough murders to reduce the total number of
innocents killed so that fewer are lost than would
be lost without it.

In general, the possibility of injustice argues
against penalization of any kind only if the ex-
pected usefulness of penalization is less important
than the probable harm (particularly to innocents)
and the probable inequities. The possibility of

injustice argues against the death penalty only
inasmuch as the added usefulness (deterrence)
expected from irrevocability is thought less
important than the added harm. (Were my argu-
ment specifically concerned with justice, I could
compare the injustice inflicted by the courts with
the injustice-outside the courts-avoided by the
judicial process. I.e., “important” here may be
used to include everything to which importance is
attached.)

We must briefly examine now the general use
and effectiveness of deterrence to decide whether
the death penalty could add enough deterrence to
be warranted.

III

Does any punishment “deter others” at all?
Doubts have been thrown on this effect because it
is thought to depend on the incorrect rationalistic
psychology of some of its 18th and 19th century
proponents. Actually deterrence does not depend on
rational calculation, on rationality or even on
capacity for it; nor do arguments for it depend on
rationalistic psychology. Deterrence depends on
the likelihood and on the regularity-not on the
rationality-of human responses to danger; and
further on the possibility of reinforcing internal
controls by vicarious external experiences.

Responsiveness to danger is generally found in
human behavior; the danger can, but need not,
come from the law or from society; nor need it be
explicitly verbalized. Unless intent on suicide,
people do not jump from high mountain cliffs,
however tempted to fly through the air; and they
take precautions against falling. The mere risk of
injury often restrains us from doing what is

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DETERRENCE AND THE DEATH PENALTY

otherwise attractive; we refrain even when we have
no direct experience, and usually without explicit
computation of probabilities, let alone conscious
weighing of expected pleasure against possible
pain. One abstains from dangerous acts because of
vague, inchoate, habitual and, above all, pre-
conscious fears. Risks and rewards are more often
felt than calculated; one abstains without account-
ing to oneself, because “it isn’t done,” or because
one literally does not conceive of the action one
refrains from. Animals as well refrain from painful
or injurious experiences presumably without
calculation; and the threat of punishment can be
used to regulate their conduct.

Unlike natural dangers, legal threats are con-
structed deliberately by legislators to restrain
actions which may impair the social order. Thus
legislation transforms social into individual
dangers. Most people further transform external
into internal danger: they acquire a sense of
moral obligation, a conscience, which threatens
them, should they do what is wrong. Arising
originally from the external authority of rulers and
rules, conscience is internalized and becomes
independent of external forces. However, con-
science is constantly reinforced in those whom it
controls by the coercive imposition of external
authority on recalcitrants and on those who have
not acquired it. Most people refrain from offenses
because they feel an obligation to behave lawfully.
But this obligation would scarcely be felt if those
who do not feel or follow it were not to suffer
punishment.

Although the legislators may calculate their
threats and the responses to be produced, the
effectiveness of the threats neither requires nor
depends on calculations by those responding. The
predictor (or producer) of effects must calculate;
those whose responses are predicted (or produced)
need not. Hence, although legislation (and legis-
lators) should be rational, subjects, to be deterred
as intended, need not be: they need only be re-
sponsive.

Punishments deter those who have not violated
the law for the same reasons-and in the same
degrees (apart from internalization: moral obliga-
tion) as do natural dangers. Often natural dangers
-all dangers not deliberately created by legisla-
tion (e.g., injury of the criminal inflicted by the
crime victim) are insufficient. Thus, the fear of
injury (natural danger) does not suffice to control
city traffic; it must be reinforced by the legal

punishment meted out to those who violate the
rules. These punishments keep most people
observing the regulations. However, where (in the
absence of natural danger) the threatened punish-
ment is so light that the advantage of violating
rules tends to exceed the disadvantage of being
punished (divided by the risk), the rule is violated
(i.e., parking fines are too light). In this case the
feeling of obligation tends to vanish as well.
Elsewhere punishment deters.

To be sure, not everybody responds to threat-
ened punishment. Non-responsive persons may
be a) self-destructive or b) incapable of responding
to threats, or even of grasping them. Increases in
the size, or certainty, of penalties would not affect
these two groups. A third group c) might
respond to more certain or more severe penalties.5
If the punishment threatened for burglary, rob-
bery, or rape were a $5 fine in North Carolina, and
5 years in prison in South Carolina, I have no
doubt that the North Carolina treasury would be-
come quite opulent until vigilante justice would
provide the deterrence not provided by law.
Whether to increase penalties (or improve en-
forcement), depends on the importance of the
rule to society, the size and likely reaction of the
group that did not respond before, and the ac-
ceptance of the added punishment and enforce-
ment required to deter it. Observation would have
to locate the points-likely to differ in different
times and places-at which diminishing, zero, and
negative returns set in. There is no reason to
believe that all present and future offenders belong
to the a priori non-responsive groups, or that all
penalties have reached the point of diminishing,
let alone zero returns.

I

V

Even though its effectiveness seems obvious,
punishment as a deterrent has fallen into disrepute.
Some ideas which help explain this progressive
heedlessness were uttered by Lester Pearson,
then Prime Minister of Canada, when, in opposing
the death penalty, he proposed that instead “the

I neglect those motivated by civil disobedience or,
generally, moral or political passion. Deterring them
depends less on penalties than on the moral support
they receive, though penalties play a role. I also
neglect those who may belong to all three groups listed,
some successively, some even simultaneously, such as
drug addicts. Finally, I must altogether omit the far
from negligible role problems of apprehension and
conviction play in deterrence-beyond saying that
by reducing the government’s ability to apprehend and
convict, courts are able to reduce the risks of offenders.

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ERNEST VAN DEN HAAG

state seek to eradicate the causes of crime-slums,
ghettos and personality disorders.” 6

“Slums, ghettos and personality disorders” have
not been shown, singly or collectively, to be “the
causes” of crime.

(1) The crime rate in the slums is indeed higher
than elsewhere; but so is the death rate in hospitals.
Slums are no more “causes” of crime, than hospi-
tals are of death; they are locations of crime, as

hospitals are of death. Slums and hospitals attract

people selectively; neither is the “cause” of the
condition (disease in hospitals, poverty in slums)
that leads to the selective attraction.

As for poverty which draws people into slums,
and, sometimes, into crime, any relative disad-

vantage may lead to ambition, frustration, re-
sentment and, if insufficiently restrained, to crime.
Not all relative disadvantages can be eliminated;
indeed very few can be, and their elimination
increases the resentment generated by the re-

maining ones; not even relative prverty can be
removed altogether. (Absolute poverty–what-
ever that may be-hardly affects crime.) However,
though contributory, relative disadvantages are
not a necessary or sufficient cause of crime: most
poor people do not commit crimes, and some rich
people do. Hence, “eradication of poverty”
would, at most, remove one (doubtful) cause of
crime.

In the United States, the decline of poverty has
not been associated with a reduction of crime.
Poverty measured in dollars of constant purchas-
ing power, according to present government
standards and statistics, was the condition of M

of all our families in 1920; of hth in 1962; and of
less than 6 in 1966. In 1967, 5.3 million families
out of 49.8 million were poor– of all families in
the United States. If crime has been reduced in a
similar manner, it is a well kept secret.

Those who regard poverty as a cause of crime
often draw a wrong inference from a true proposi-
tion: the rich will not commit certain crimes-
Rockefeller never riots; nor does he steal. (He
mugs, but only on T.V.) Yet while wealth may be
the cause of not committing (certain) crimes, it
does not follow that poverty (absence of wealth)
is the cause of committing them. Water extin-
guishes or prevents fire; but its absence is not the
cause of fire. Thus, if poverty could be abolished,

6 N.Y. Times, Nov. 24, 1967, at 22. The actual
psychological and other factors which bear on the
disrepute-as distinguished from the rationalizations-
cannot be examined here.

if everybody had all “necessities” (I don’t pretend
to know what this would mean), crime would
remain, for, in the words of Aristoteles “the
greatest crimes are committed not for the sake of
basic necessities but for the sake of superfluities.”
Superfluities cannot be provided by the govern-
ment; they would be what the government does
not provide.

(2) Negro ghettos have a high, Chinese ghettos
have a low crime rate. Ethnic separation, volun-
tary or forced, obviously has little to do with
crime; I can think of no reason why it should.7

(3) I cannot see how the state could “eradicate”
personality disorders even if all causes and cures
were known and available. (They are not.)
Further, the known incidence of personality
disorders within the prison population does not
exceed the known incidence outside-though our
knowledge of both is tenuous. Nor are personality
disorders necessary, or sufficient causes for crimi-
nal offenses, unless these be identified by means of
(moral, not clinical) definition with personality
disorders. In this case, Mr. Pearson would have
proposed to “eradicate” crime by eradicating
crime-certainly a sound, but not a helpful idea.

Mr. Pearson’s views are part as well of the
mental furniture of the former U.S. Attorney
General, Ramsey Clark, who told a congressional
committee that “… . only the elimination of the
causes of crime can make a significant and lasting
difference in the incidence of crime.” Uncharitably
interpreted, Mr. Clark revealed that only the
elimination of causes eliminates effects-a sleazy
cliche and wrong to boot. Given the benefit of the
doubt, Mr. Clark probably meant that the causes
of crime are social; and that therefore crime can
be reduced “only” by non-penal (social) measures.

This view suggests a fireman who declines fire-
fighting apparatus by pointing out that “in the

long run only the elimination of the causes” of
fire “can make a significant and lasting difference
in the incidence” of fire, and that fire-fighting
equipment does not eliminate “the causes”-

except that such a fireman would probably not
rise to fire chief. Actually, whether fires are checked,
depends on equipment and on the efforts of the
firemen using it no less than on the presence of

7 Mixed areas, incidentally, have higher crime rates
than segregated ones. See, e.g., Ross & VAN DEN
HAAG, THE FABRIC OF SOCIETY, 102-4 (1957). Because
slums are bad (morally) and crime is, many people
seem to reason that “slums spawn crime”-which
confuses some sort of moral with a causal relation.

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DETERRENCE AND THE DEATH PENALTY

“the causes”: inflammable materials. So with
crimes. Laws, courts and police actions are no
less important in restraining them, than “the
causes” are in impelling them. If firemen (or
attorneys general) pass the buck and refuse to use
the means available, we may all be burned while
waiting for “the long run” and “the elimination of
the causes.”

Whether any activity-be it lawful or unlawful-
takes place depends on whether the desire for it,
or for whatever is to be secured by it, is stronger
than the desire to avoid the costs involved. Ac-
cordingly people work, attend college, commit
crimes, go to the movies-or refrain from any of
these activities. Attendance at a theatre may be

high because the show is entertaining and because
the price of admission is low. Obviously the at-
tendance depends on both-on the combination of
expected gratification and cost. The wish, motive
or impulse for doing anything-the experienced,
or expected, gratification-is the cause of doing it;
the wish to avoid the cost is the cause of not doing
it. One is no more and no less “cause” than the
other. (Common speech supports this use of
“cause” no less than logic: “Why did you go to

Jamaica?” “Because it is such a beautiful place.”
“Why didn’t you go to Jamacia?” “Because it is
too expensive.”-“Why do you buy this?” “Be-
cause it is so cheap.” “Why don’t you buy that?”
“Because it is too expensive.”) Penalties (costs)
are causes of lawfulness, or (if too low or uncertain)
of unlawfulness, of crime. People do commit
crimes because, given their conditions, the desire
for the satisfaction sought prevails. They refrain
if the desire to avoid the cost prevails. Given the

desire, low cost (penalty) causes the action, and

high cost restraint. Given the cost, desire be-
comes the causal variable. Neither is intrinsically
more causal than the other. The crime rate in-
creases if the cost is reduced or the desire raised.
It can be decreased by raising the cost or by reduc-

ing the desire.
The cost of crime is more easily and swiftly

changed than the conditions producing the in-
clination to it. Further, the costs are very largely
within the power of the government to change,
whereas the conditions producing propensity to
crime are often only indirectly affected by govern-
ment action, and some are altogether beyond the
control of the government. Our unilateral emphasis
on these conditions and our undue neglect of costs

may contribute to an unnecessarily high crime
rate.

V

The foregoing suggests the question posed by
the death penalty: is the deterrence added (return)
sufficiently above zero to warrant irrevocability
(or other, less clear, disadvantages)? The question
is not only whether the penalty deters, but whether
it deters more than alternatives and whether the
difference exceeds the cost of irrevocability. (I
shall assume that the alternative is actual life
imprisonment so as to exclude the complication
produced by the release of the unrehabilitated.)

In some fairly infrequent but important circum-
stances the death penalty is the only possible
deterrent. Thus, in case of acute coups d’etat, or of
acute substantial attempts to overthrow the
government, prospective rebels would altogether
discount the threat of any prison sentence. They
would not be deterred because they believe the
swift victory of the revolution will invalidate a
prison sentence and turn it into an advantage.
Execution would be the only deterrent because,
unlike prison sentences, it cannot be revoked by
victorious rebels. The same reasoning applies to
deterring spies or traitors in wartime. Finally, men
who, by virtue of past acts, are already serving, or
are threatened, by a life sentence, could be deterred
from further offenses only by the threat of the
death penalty.8

What about criminals who do not fall into any
of these (often ignored) classes? Prof. Thorsten
Sellin has made a careful study of the available
statistics: he concluded that they do not yield
evidence for the deterring effect of the death
penalty.9 Somewhat surprisingly, Prof. Sellin seems
to think that this lack of evidence for deterrence
is evidence for the lack of deterrence. It is not. It
means that deterrence has not been demonstrated
statistically-not that non-deterrence has been.

It is entirely possible, indeed likely (as Prof.
Sellin appears willing to concede), that the statis-

8 Cautious revolutionaries, uncertain of final victory,
might be impressed by prison sentences-but not in
the acute stage, when faith in victory is high. And
one can increase even the severity of a life sentence in
prison. Finally, harsh punishment of rebels can in-
tensify rebellious impulses. These points, though they
qualify it, hardly impair the force of the argument. 9 Prof. Sellin considered mainly homicide statistics.
His work may be found in his CAPITAL PUNISHMENT
(1967), or, most conveniently, in BEDAU, THE DEATH
PENALTY IN AMERICA (1964), which also offers other
material, mainly against the death penalty.

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ERNEST VAN DEN HAAG

tics used, though the best available, are nonethe-
less too slender a reed to rest conclusions on. They
indicate that the homicide rate does not vary
greatly between similar areas with or without the
death penalty, and in the same area before and
after abolition. However, the similar areas are not
similar enough; the periods are not long enough;
many social differences and changes, other than
the abolition of the death penalty, may account
for the variation (or lack of) in homicide rates with
and without, before and after abolition; some of
these social differences and changes are likely
to have affected homicide rates. I am unaware of
any statistical analysis which adjusts for such
changes and differences. And logically, it is quite
consistent with the postulated deterrent effect of
capital punishment that there be less homicide
after abolition: with retention there might have
been still less.

Homicide rates do not depend exclusively on
penalties any more than do other crime rates. A
number of conditions which influence the pro-
pensity to crime, demographic, economic or
generally social, changes or differences-even such
matters as changes of the divorce laws or of the
cotton price-may influence the homicide rate.
Therefore variation or constancy cannot be at-
tributed to variations or constancy of the penalties,
unless we know that no other factor influencing
the homicide rate has changed. Usually we don’t.
To believe the death penalty deterrent does not
require one to believe that the death penalty, or
any other, is the only, or the decisive causal vari-
able; this would be as absurd as the converse mis-
take that “social causes” are the only, or always the
decisive factor. To favor capital punishment, the
efficacy of neither variable need be denied. It is
enough to affirm that the severity of the penalty
may influence some potential criminals, and that
the added severity of the death penalty adds to
deterrence, or may do so. It is quite possible that
such a deterrent effect may be offset (or intensified)
by non-penal factors which affect propensity; its
presence of absence therefore may be hard, and
perhaps impossible to demonstrate.

Contrary to what Prof. Sellin et al. seem to
presume, I doubt that offenders are aware of the
absence of presence of the death penalty state by
state or period by period. Such unawareness argues
against the assumption of a calculating murderer.
However, unawareness does not argue against the
death penalty if by deterrence we mean a pre-

conscious, general response to a severe, but not
necessarily specifically and explicitly apprehended,
or calculated threat. A constant homicide rate,
despite abolition, may occur because of unaware-
ness and not because of lack of deterrence: people
remain deterred for a lengthy interval by the
severity of the penalty in the past, or by the
severity of penalties used in similar circumstances
nearby.

I do not argue for a version of deterrence which
would require me to believe that an individual
shuns murder while in North Dakota, because of
the death penalty, and merrily goes to it in South
Dakota since it has been abolished there; or that
he will start the murderous career from which he
had hitherto refrained, after abolition. I hold that
the generalized threat of the death penalty may
be a deterrent, and the more so, the more generally
applied. Deterrence will not cease in the particular
areas of abolition or at the particular times of
abolition. Rather, general deterrence will be some-
what weakened, through local (partial) abolition.
Even such weakening will be hard to detect owing
to changes in many offsetting, or reinforcing,
factors.

For all of these reasons, I doubt that the presence
or absence of a deterrent effect of the death penalty
is likely to be demonstrable by statistical means.
The statistics presented by Prof. Sellin et al. show
only that there is no statistical proof for the deter-
rent effect of the death penalty. But they do not
show that there is no deterrent effect. Not to
demonstrate presence of the effect is not the same
as to demonstrate its absence; certainly not when
there are plausible explanations for the non-demon-
strability of the effect.

It is on our uncertainty that the case for deter-
rence must rest.10

VI

If we do not know whether the death penalty will
deter others, we are confronted with two uncer-
tainties. If we impose the death penalty, and
achieve no deterrent effect thereby, the life of a

10 In view of the strong emotions aroused (itself an
indication of effectiveness to me: might murderers not
be as upset over the death penalty as those who wish
to spare them?) and because I believe penalties must
reflect community feeling to be effective, I oppose
mandatory death sentences and favor optional recom-
mendations by juries after their finding of guilt. The
opposite course risks the non-conviction of guilty
defendents by juries who do not want to see them
executed.

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DETERRENCE AND THE DEATH PENALTY

convicted murderer has been expended in vain
(from a deterrent viewpoint). There is a net loss.
If we impose the death sentence and thereby deter
some future murderers, we spared the lives of some
future victims (the prospective murderers gain too;
they are spared punishment because they were
deterred). In this case, the death penalty has led to
a net gain, unless the life of a convicted murderer
is valued more highly than that of the unknown
victim, or victims (and the non-imprisonment of
the deterred non-murderer).

The calculation can be turned around, of course.
The absence of the death penalty may harm no one
and therefore produce a gain-the life of the con-
victed murderer. Or it may kill future victims of
murderers who could have been deterred, and thus
produce a loss-their life.

To be sure, we must risk something certain-the
death (or life) of the convicted man, for something
uncertain-the death (or life) of the victims of
murderers who may be deterred. This is in the
nature of uncertainty-when we invest, or gamble,
we risk the money we have for an uncertain gain.
Many human actions, most commitments-includ-
ing marriage and crime-share this characteristic
with the deterrent purpose of any penalization, and
with its rehabilitative purpose (and even with the

protective).
More proof is demanded for the deterrent effect

of the death penalty than is demanded for the
deterrent effect of other penalties. This is not

justified by the absence of other utilitarian pur-
poses such as protection and rehabilitation; they
involve no less uncertainty than deterrence.1l

11 Rehabilitation or protection are of minor im-
portance in our actual penal system (though not in our
theory). We confine many people who do not need
rehabilitation and against whom we do not need
protection (e.g., the exasperated husband who killed
his wife); we release many unrehabilitated offenders

Irrevocability may support a demand for some
reason to expect more deterrence than revocable
penalties might produce, but not a demand for
more proof of deterrence, as has been pointed out
above. The reason for expecting more deterrence
lies in the greater severity, the terrifying effect
inherent in finality. Since it seems more important
to spare victims than to spare murderers, the
burden of proving that the greater severity in-
herent in irrevocability adds nothing to deterrence
lies on those who oppose capital punishment. Pro-
ponents of the death penalty need show only that
there is no more uncertainty about it than about
greater severity in general.

The demand that the death penalty be proved
more deterrent than alternatives can not be satis-
fied any more than the demand that six years in
prison be proved to be more deterrent than three.
But the uncertainty which confronts us favors the
death penalty as long as by imposing it we might
save future victims of murder. This effect is as
plausible as the general idea that penalties have
deterrent effects which increase with their severity.
Though we have no proof of the positive deterrence
of the penalty, we also have no proof of zero, or
negative effectiveness. I believe we have no right to
risk additional future victims of murder for the
sake of sparing convicted murderers; on the con-
trary, our moral obligation is to risk the possible
ineffectiveness of executions. However rationalized,
the opposite view appears to be motivated by the
simple fact that executions are more subjected to
social control than murder. However, this applies
to all penalties and does not argue for the abolition
of any.

against whom protection is needed. Certainly re-
habilitation and protection are not, and deterrence is,
the main actual function of legal punishment, if we
disregard non-utilitarian purposes.

1969] 147

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• Article Contents

p. 141

p. 142

p. 143

p. 144

p. 145

p. 146

p. 147

• Issue Table of Contents

The Journal of Criminal Law, Criminology, and Police Science, Vol. 60, No. 2 (Jun., 1969), pp. i-ii+141-286

Front Matter [pp. i-ii]

On Deterrence and the Death Penalty [pp. 141-147]

Why Was Capital Punishment Restored in Delaware? [pp. 148-151]

Prison Disciplinary Decisions [pp. 152-164]

Delinquency, Personal Costs and Parental Treatment: A Test of a Reward-Cost Model of Juvenile Criminality [pp. 165-172]

Small Town Gangs [pp. 173-181]

Criminal Law Comments and Case Notes

Sentencing Disparity: Causes and Cures [pp. 182-195]

Admissibility of Confession of Codefendant [pp. 195-203]

Federal Procedure for Court Ordered Electronic Surveillance: Does It Meet the Standards of “Berger” and “Katz”? [pp. 203-214]

Criminal Law Case Notes [pp. 214-229]

Book Reviews

Review: untitled [pp. 229-231]

Review: untitled [p. 231]

Review: untitled [pp. 232-233]

Review: untitled [pp. 233-234]

Review: untitled [pp. 234-235]

Books Received [pp. 235-236]

Police Science

A Symposium on Innovations in Police Techniques: Recruit Selection, Community Service and Community Relations

[Introduction] [p. 237]

Use of Diagnostic Small Groups in Police Recruit Selection and Training [pp. 238-241]

Small Group Dialogue and Discussion: An Approach to Police-Community Relationships [pp. 242-246]

Family Intervention Police Teams as a Community Mental Health Resource [pp. 247-250]

Conflict Resolution: Team Building for Police and Ghetto Residents. Grand Rapids, Michigan, Program [pp. 251-255]

Commentary on the Symposium [pp. 256-257]

The Development of Latent Fingerprints with Ninhydrin [pp. 258-264]

Curriculum Development for a Police Science Program [pp. 265-271]

Police Science Technical Abstracts and Notes [pp. 272-278]

Police Science Book Reviews

Review: untitled [pp. 278-279]

Review: untitled [pp. 279-280]

Review: untitled [pp. 280-282]

Review: untitled [pp. 282-283]

Review: untitled [p. 283]

Review: untitled [pp. 283-285]

Review: untitled [pp. 285-286]

Review: untitled [p. 286]