2011 Summer, Pg. 18. MAKING THE CASE FOR THE DETERRENCE EFFECT OF CAPITAL PUNISHMENT.

• Author: By James M. Reams and Charles T. Putnam

New Hampshire Bar Journal

2011.

2011 Summer, Pg. 18.

MAKING THE CASE FOR THE DETERRENCE EFFECT OF CAPITAL PUNISHMENT

New Hampshire Bar JournalVolume 52, No. 2Summer 2011 MAKING THE CASE FOR THE DETERRENCE EFFECT OF CAPITAL PUNISHMENT By James M. Reams and Charles T. PutnamThe concept of deterrence plays a central role in all criminal sentencing in New Hampshire's criminal justice system. Judges in New Hampshire are required to consider three goals of sentencing in every criminal case: deterrence, rehabilitation, and punishment. "Specific deterrence" is a concept where a sentence is imposed on a particular offender in order to prevent him/her from engaging in criminal activity in the future.

"General deterrence" is designed to send a message to members of the general public that if they engage in criminal conduct their actions will be met with punishment. In this way, others are deterred from committing crimes for fear of the consequences meted out by the criminal justice system. It is axiomatic to say that the death penalty serves both the goals of specific and general deterrence.

There is no dispute that the death penalty accomplishes the goal of specific deterrence. It goes without saying that the death of a defendant who has committed capital murder ensures that he will not kill again. For some capital defendants the specific deterrence rationale is particularly appropriate.

For example, terrorists, who have pledged to continue to kill, need to be prevented from killing again and holding them in prison endangers the guards that work there. Also, defendants who have committed murder while already serving a sentence of life without parole or who have killed a prison guard while incarcerated or while attempting to escape from custody, have clearly demonstrated that incarceration alone is inadequate to prevent them from killing again. Thus, specific deterrence is particularly necessary for these categories of capital murder.

The death penalty also serves the goal of general deterrence. In recent years, increasingly sophisticated economic models have been developed to study the deterrent effect, if any, of the death penalty on future crime. The studies are hotly debated in the academic world. As of now, there is no universally accepted conclusion to this debate.

Moreover, as a practical matter it seems that it is difficult to measure, with any degree of accuracy, murders which were prevented as a result of the death penalty deterring them. It is difficult to comprehend how one could count the non-occurrence of a murder., even over large populations, because there are so many types of homicide and because it is difficult to get precise data by murder type.

Nonetheless, fundamental...