A "commonsense" theory of deterrence and the "ideology" of science: the New York state death penalty debate.

AuthorGalliher, James M.

Capital punishment is one of the most contentious public policy debates in the United States. While surviving since colonial times, (1) the debate has become especially heated since the U.S. Supreme Court decision in Furman v. Georgia in 1972. (2) In that decision, the Supreme Court outlawed executions as then practiced due to the arbitrary and capricious manner in which they had been administered. (3) Most states rushed to reinstate capital punishment statutes they hoped would pass constitutional review. In the equally historic decision of Gregg v. Georgia in 1976. (4) the Supreme Court cleared the way for the resumption of legal executions by approving death penalty statutes containing "guided discretion" provisions. Actual executions began again on January 17, 1977 after a ten-year hiatus with the execution of Gary Gilmore in Utah. (5)

The states that led the movement to restore capital punishment typically had long traditions of executions, especially those states of the former Confederacy. (6) Zimring and Hawkins argued that:

[A] history of frequent executions ... serves as a kind of precedent, reassuring political actors that their own participation is neither inhumane nor immoral ... on the grounds that, historically, executions do not violate local community morality. (7) And, based on local experience, it wasn't only southern states that rushed to enact new death penalty laws. New York is a case in point. According to the Espy file on executions. (8) New York ranked second among American states in the number of legal executions prior to Furman with 1,130 executed between 1630 and 1963. Correspondingly, polls of New York state legislators in the 1980s and 1990s indicated that a majority supported capital punishment. (9) We will demonstrate in this Article that the New York State Senate and Assembly debated death penalty bills for nineteen consecutive years beginning in 1977.

Kansas is another American state having had a protracted death penalty debate. In the Kansas State Legislature, the death penalty was annually debated between 1975 and 1993. Capital punishment bills typically only passed both houses of the legislature when a death penalty opponent was governor who promised to veto all death penalty bills. (10) Some legislators apparently felt they could support death penalty initiatives only when sure of a gubernatorial veto. (11) In 1994 the legislature passed a death penalty bill during the term of a capital punishment opponent who, contrary to precedent, allowed the bill to become law without her signature. (12)

In New York from 1977 to 1995, we will show that during each of these nineteen legislative sessions, the New York Assembly and Senate debated death penalty bills and passed them, by large margins, only to have the bills vetoed by Democratic governors (Hugh Carey, 1975-1983 and Mario Cuomo, 1983-1994). During some sessions, the Senate was successful in overriding the governor's veto while the assembly's efforts always fell short by only a few votes. George Pataki, elected Governor in 1994, fulfilled a campaign promise when he signed a death penalty bill into law on March 7, 1995, (13) making New York the thirty-eighth and most recent state to do so.

  1. STATEMENT OF THE PROBLEM

    This research will consider the principal claims and counterclaims made by death penalty supporters and opponents, as well as document the manner in which these claims were advanced or refuted. The nineteen-year debate provides a natural laboratory that can assist our understanding of why the United States is the only Western industrialized democracy to retain capital punishment. As Zimring has observed: "The ongoing debate in New York was the most visible and sustained at any level of government in the United States since 1980." (14) With a population of approximately eighteen million, New York is among the most populous of American states and its cities have the problems of urban decay, poverty, and crime found in other states. (15) Thus, there is no basis for suggesting that the underlying reasoning found in New York on capital punishment would not appear elsewhere in the United States.

  2. COGNITIVE DISSONANCE THEORY AND THE "IDEOLOGY" OF SCIENCE

    Just as social scientists construct theories to explain criminal behavior and conformity, such as cultural conflict, anomie, and social learning, so too do non-scientists. Hartjen presents the argument that human beings should be viewed as theorizers or "constructors of a commonsense reality." (16) He contends:

    [C]ommonsense actors are as fully engaged in reality construction as the scientist.... That is, to study the apprehended realities of everyday actors--the results of their constructs--it is advantageous to treat these constructs as instances of theories, albeit commonsense ones. (17) Swidler argues that while "`ideology' is a highly articulated, self-conscious belief and ritual system, aspiring to offer a unified answer to problems of social action, ... `[c]ommonsense' [refers to] the set of assumptions so unselfconscious as to seem a natural, transparent, undeniable part of the structure of the world." (18)

    This paper will describe the underlying "commonsense" theory used by death penalty proponents. Lindblom and Cohen refer to commonsense thinking as "ordinary knowledge" which can be "highly fallible" (19) since it does not have its origins in social science research, but rather in speculation and casual observation, and is error prone due to "inferences based on small amounts of data." (20) The lay observer also believes that "punishment decreases [targeted behaviors since] people seek to maximize pleasure and minimize pain." (21)

    Cognitive dissonance theory argues that people attempt to avoid inconsistency among their cognitions by selective perception. (22) Others have concluded: "It is unsurprising, therefore, that important social issues and policies generally prompt sharp disagreements, even among highly concerned and intelligent citizens, and thus disagreements often survive strenuous attempts at resolution through discussion and persuasion" because "people tend to interpret subsequent evidence so as to maintain their initial beliefs." (23) For example, research has found that subjects' attitudes toward the death penalty determine how evidence on the effectiveness of the death penalty as a deterrent is interpreted. (24) Still, it is true that "[p]eople place a premium on being rational." (25)

    To make sense of these apparent contradictions between bias and rationality, research by Lord, Ross and Lepper used both those opposed to, and those in favor of, capital punishment. (26) Subjects were presented with information from studies demonstrating a deterrent effect of the death penalty and other studies showing the opposite. Subjects only remembered the limitations and critiques of research that contradicted their original beliefs, and thus the attitudes of the two groups became more polarized. The authors concluded that "social scientists cannot expect rationality, enlightenment, and consensus about policy to emerge from their attempts to `furnish' objective data." (27)

    We will show how protracted legislative debate in New York survived "strenuous attempts at resolution" in spite of the presentation of "objective data" from a host of scientific studies. Social science research has arrived at different conclusions than lay opinion and thus is cast into the role of "ideology," irrespective of its scholarly merit. This Article will address the commonsense "ordinary knowledge" of the deterrent effect of capital punishment on homicides advanced by New York legislators, by far the most frequent justification for reinstatement of capital punishment in these legislative debates (Table 1). Other arguments included whether capital punishment is racist in application, and error prone yet impossible to rectify, each accounting for less than half of the debates about deterrence. Public opinion on capital punishment, financial costs of executions, and the role of retribution were mentioned only infrequently and debate on these issues was never really joined. We will see that at times speakers discussing deterrence appeared to refer to incapacitation of those executed (specific deterrence), sometimes to the prevention of crime among other potential offenders (general deterrence) and sometimes to both incapacitation and deterrence.

    The statements of legislators we will study are undoubtedly a combination of their personal beliefs and what they feel they must say to represent the views of their constituents. In any case, their utterances give some cross-section of views of capital punishment in New York. For their part, social scientists have also expressed considerable interest in deterrence theory. After a slow start in the 1950s and early to mid-1960s deterrence research began a period of popularity in the late 1960s and throughout the 1970s. (28) Between 1968 and 1979 there was an average of eight studies published per year in criminology, law, and sociology journals, compared to a total of only seven articles during the previous seventeen years. (29) Although most of the studies found no evidence of deterrence (especially in the case of capital punishment), the spate of articles demonstrated that scholars recognized this as a legitimate and important area of study. The most frequently cited studies in this body of research included an article by Ehrlich, often mentioned by death penalty proponents in the New York state legislature, emphasizing his conclusion that "an additional execution per year ... may have resulted, on average, in 7 or 8 fewer murders." (30)

  3. METHODS AND DATA

    The research in this Article makes use of the verbatim text recorded in the New York assembly and senate. New York is one of the few states that transcribes all debates on the floors of both houses. While Kansas also experienced a long legislative debate on the death penalty...

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