ECONOMICS OF CAPITAL PUNISHMENT: REFORMING JUSTICE

Adriel Alan Berty, Arathi Sandeep, Nevin C Vijils

23113006, 23113016, 23113039

3BA LLB (Honours), School of Law, Christ Deemed to Be University

Pune, Lavasa Campus, Maharashtra, 412112

12 November 2024

Abstract

This paper seeks to bring to readers a more comprehensive and nuanced approach in
understanding the less explored aspects of capital punishment in our contemporary world.
Any remotely conscious person who is a part of the society with the coming of a certain age
where understanding how law and order functions is automatically ingrained with the
extreme nature of capital punishments and the possible severity of any crime that could result
in being awarded this fate. Aside from the shock factor and infamous historical significance
of death penalty, it still sparks debates today regarding its morality, progressiveness and
deterrence in society, ultimately posing the questions of its place in the modern world. Some
scholars have approached this debate using a more quantitative or economic aspect to argue
the effectiveness and usage of capital punishment in recent times.

With the biggest challenge to studying various aspects of death penalty being the lack of
academic research across various jurisdictions, including comparative studies across various
criminal justice systems on a large scale, a lot of other aspects such as impact on victims’
families, evaluation of other potential reform methods etc are all huge gaps with a number of
questions being brought to light. In this paper, with our available resources and effort, we
seek to explore questions dealing with the cost-benefit analysis and economic justification of
death penalty, deterrence of capital punishment and if countries banning capital punishment
has been beneficial or not as well as exploring a way forward through other potential means
of reform/ penalty in the justice system.

The main source of references for this paper has come from primary reports from
organisations such as Death Penalty Information Centres, various government reports, etc
while also including secondary and other sources such as news reports, articles and surveys.
The research methodology has included both qualitative as well as quantitative information in
its critical analysis in the paper.

Keywords: Capital Punishment, Death penalty, Crime Deterrence, Legal system,

Introduction

The death penalty or capital punishment has long been a highly polarizing topic within the
field of criminal justice involving opinions and theories from many scholars and
academicians in various disciplines as well. It has sparked intense debates around the ethics,
deterrence, and economic implications of this form of punishment since the beginning of
history of civilisations itself. Historically, capital punishment can be dated back to ancient
civilizations, where the main objective of its usage was as a means to enforce societal norms
and laws, in a way, ensuring law and order in the society. Back in time, capital punishments
were also public displays of the power of a sovereign or the triumphing of ‘justice’. At times,
these public shows also served as relief for the citizens as it ensured their safety from the
terror a certain criminal may have caused, as with the case of The Serial Killer Henri Désiré
Landru and Si Quey. Therefore, the ultimate goal of death penalty is signified by the ‘point of
no return’ for a criminal, that is, they have no redemption and hence should be removed from
society altogether. This notion of capital punishment also serves as the basis of the main
arguments for the prevalence of the same even today during debates, although its worth
noting, the argument itself is quite weak, according to most scholars. In modern times, the
use of the death penalty has come under much scrutiny, with opponents arguing that it is
inhumane, failing as a deterrent, and disproportionately affects marginalized communities
highlighting socioeconomic differences in the process. To this, most supporters counter that it
delivers justice for heinous crimes and upholds law and order. These polarizing perspectives
have fuelled ongoing debates around the world, even entering into policy discourses resulting
in more countries re-examining or even abolishing this practice.

Despite the moral and social dimensions of these ongoing debates, the economics of death
penalty have become a focal point to focus on in the recent years again, fuelled by the various
developments in the international arena and societal changes. Most times, the cost of capital
punishment extends beyond the act of execution itself, this can be understood when we take
into account the costs on lengthy legal processes, appeals, incarceration, and additional
security measures, living basics and essentials on death row etc all of which place an
extensive financial burden on the government. Martin Kaster in his paper, “An Economic
Analysis of Death Penalty”, stated that an approximate amount of the total annual
incremental cost of the death penalty ranges from $96,252,150 to $214,509,120 in the late
1990s itself. This is an approximate amount calculated taking into factors such as
investigation costs, trial and sentencing costs, appellate costs, execution costs, based on
Garey 1985. A cost-benefit analysis based on this information itself reveals that maintaining a
system of capital punishment is often more expensive than life imprisonment without parole,
raising questions about the efficiency and sustainability of such policies along with its
already ongoing normative discussions. In addition to this, deterrence is a key factor in the
criminal justice system when it comes to punitive measures plays a significant role. This was
also one of the major arguments for the notion of keeping the practice of capital punishment
up. Radelat and Akers in their journal “Deterrence and the Death Penalty: The Views of the
Experts” in 1996, concluded in their study that there is no unique or that there is ‘little to no’
deterrence effect that has been observed from capital punishments as catalysts. Hence, the
argument extended to back the claim that if a crime carried death penalty as punishment,
most criminals, especially in case of crimes being committed in an in the spur-of-the-moment
mindset now have no further incentive to lessen their potential punishment. For example, if
armed robbery carries death penalty, then the criminal loses nothing in his attempt to flee.
This might even cause further violence. (Amnesty International, 2021).

Thus this paper aims to explore the economic implications of capital punishment and how
these considerations influence public policy and justice reform keeping in mind our main
question; ‘How does the economic and social implications of death penalty compare with that
of life imprisonment or other potential reforms? how are countries who banned capital
punishment doing in these same aspects?”. When we refer to countries who have abolished
death penalty, we are talking about countries such as Canada and certain European nations.
We are interested in how they have managed in terms of crime rates and economic impact.
Furthermore, we also aim to make effective suggestions in prospective aspect such as in
exploring the possibilities of potential reforms that could make the justice system more
economically viable while ensuring fairness and public safety in the contemporary sense. We
shall use various case studies and policy reports as qualitative material and further analysed
data from the recent years to study the impact capital punishment has made on society
through the years leading up to today.

Literature Review

Capital punishment as a topic of research focused explicitly on its normative aspects until
very recently, that is, the late 1990s. it made appearances through various case studies and
data cited across many research papers in fields such as criminal psychology, sociology and
historical analysis etc. This left a major part of the research for death penalty’s quantitative
and other more positive aspects. Just like most other notable features of the criminal justice
system, capital punishment is also a multifaceted area of study. The economic analysis of the
death penalty has emerged as a vital area of research, particularly referring to the cost-benefit
analysis of the punitive action. This has emerged to be useful in critical analysis in policy
reforms, especially as more jurisdictions evaluate the efficacy, financial aspect and societal
impact of capital punishment. Academic literature on the topic focuses on the cost
implications of maintaining a death penalty system compared to alternative sentences, the
benefits and costs of doing so along with the economic and social outcomes in countries that
have abolished capital punishment, and possible reforms aimed at justice efficiency.
Specifically, countries like Canada. Canada, often cited as a successful case of abolishment of
death penalty, abolished capital punishment in 1976. Although, for the initial few years crime
rates showed no direct decline, by 2018 the rate of homicide was 5 per 100,000 people.
Essentially, the crime rate had already halved by 2008 compared to what it was in 1976.
Thus, suggesting that the absence of death penalty does not undesirably impact public safety
at all. This outcome has since challenged the argument that the death penalty is a necessary
element to maintain law and order. Several other countries in the European union and others
also saw various benefits as well as some unintended consequences through the abolishing of
capital punishment, for example – Netherlands, Norway, Rwanda, Brazil, Fiji etc. These
European countries, which have also abolished capital punishment, present data with similar
findings, also presenting as a result the same funds previously allocated to capital cases have
now been redirected toward crime prevention programs and rehabilitation efforts for
offenders. Such case studies further provide evidence that justice systems can thus indeed
function effectively and economically without the death penalty, making them valuable
references for countries still wrestling with this issue, such as India.

A major area of scholarly investigation into the economic study of capital punishment is
contained in the cost-benefit analysis studies of capital punishment. These papers by various
authors from recent years highlight the significant financial burden that the death penalty
imposes on judicial and penal systems across the world. According to Amnesty International,
as previously quoted, and various state-based audits in the United States of America, the cost
of a death penalty case (capital cases) is usually two to three times higher than a case
involving life imprisonment without parole for the offenders. Among the various factors
contributing to these high costs, there includes extended investigation, trials, multiple
appeals, extensive jury selection, and the higher costs associated with death row
incarceration, such as heightened security measures and living facilities. This is also
considering that sometimes inmates are put of death row for so long that they tend to pass
away of old age while awaiting execution. Another study from the Death Penalty Information
Centre or DPIC (also previously quoted) revealed that in the state of California has spent over
$4 billion on capital punishment and associating costs since 1978, yet has carried out only a
relatively smaller number of executions. A majority of these costs are attributed to trial and
death row incarceration for an extended period of time. This finding has led to major
discussions about the inefficiency of capital punishment and its drain on public resources not
just in the United States but also across the globe. In a similar report from the US itself by the
Kansas Judicial Council found that the cost of handling death penalty cases in the state
exceeded that of non-capital cases by more than 70%, even when accounting for appeals and
imprisonment costs of these cases. Despite the evidence, some advocates of capital
punishment argue that some of these costs can be moderated through various reforms, for
example, expediting the legal appeals process, lessening time and resource wastage as similar
to the European nations. But even so, critics point out that even with streamlined and
moderated procedures, the intrinsic complexities of such cases make them financially
burdensome on the government and negatively impacts the society.
When it comes to the economic justification of capital punishment, the deterrence effect is
always brought up. Although the deterrent effect of death penalty has long been debated by
scholars, there has been mixed evidence on its effectiveness in preventing crime. Yet another
angle for the same proposed that, the deterrence effect of capital punishment is also affected
by the manner of application and depends on a number of other external factors such as the
country and even its history. On one side, economists like John J. Donohue and Justin
Wolfers have conducted research ultimately resulting that there is no actual conclusive proof
that capital punishment acts as a greater deterrent to crime than life imprisonment as punitive
action. From this came the argument that the resources and time used for death penalty could
be further redirected toward more effective crime prevention strategies, offering better
chances of deterring crime such as community policing and social welfare programs. But
some others argue that there may be a marginal deterrent effect in capital punishment, even
so those findings are disputed for their flaws, especially methodological. Therefore, the
debate over deterrence adds a second layer to the economic argument, because any potential
benefits must be weighed against the substantial financial costs of maintaining a system of
capital punishment as per the cost-benefit analysis problem from earlier.

Further there has been suggestions made regarding various reform measures to reduce the
economic burden death penalty. Some examples are, cutting down on the number of
permissible appeals in court after trial, accelerating trial procedures, and enforcing stricter
guidelines for death penalty eligibility of an offender. However, there has been arguments
made in response to this stating that such reforms may compromise the quality of justice and
increase the risk of wrongful executions as well. This is backed up mainly by the case of Kirk
Bloodsworth, the first ever American death row inmate that was exonerated by DNA
evidence. They argue that some legal reviews, despite the cost, time and effort are deeply
important to ensure proper justice. Another example of a suggestion is investing in
alternatives such as restorative justice means and life sentences without parole as suggested
by many historical scholars as well. Advocates of this suggestion strengthens the argument
further by stating that it not only beneficial financially but also allows for resources to be not
just prevention of crime but also to victim support services and programs. Further, another
line of thought in literature emphasizes the need for a greater transparency and accountability
in the governments particularly in the area of economic assessment of death penalty to make
informed policy decisions better and also reform them as per the need of the hour.
Main Body/ Discussion

Conclusion

References

Appendices