When Attorney General William Barr announced the resumption of federal executions on Thursday, he was making good on a 30-year-old ambition.
In the late 1980s and early 1990s, Barr repeatedly labeled death penalty critics “pro-criminal,” and insisted that a faster, broader, and less-constrained system for killing killers would help deter would-be murderers.
Elected Democrats spent part of those years pushing for reforms to cure well-established racial disparities in the application of capital punishment. Barr, as a senior Department of Justice official and eventually attorney general, was the primary face of the pushback from then-President George H. W. Bush’s administration.
“Obviously, such delay undermines the deterrent and retributive force of the death penalty,” Barr wrote in a 1990 New York Times op-ed, decrying what was then a seven-year average timeline from a person being sentenced to die and the night they were actually killed by the state. He’d used the same line weeks earlier in a column for the Los Angeles Times, which ran under the headline “WOLVES FIGHTING CRIME GO ‘B-A-A-A’.”
Barr and his team repeatedly made the argument that killing crooks deters others from crime, not just to oppose stricter review of capital cases but also in support of Bush’s own proposal to expand and speed up the application of the death penalty.
“The administration strongly believes that the death penalty and mandatory sentencing have a deterrent affect on crime,” Barr’s then-spokesman Paul McNulty said in support of Bush’s bill in 1991.
Bush’s push on capital punishment came right on the heels of Justice Clarence Thomas’s confirmation to the Supreme Court. His selection of Barr – in a surprise nomination announcement just 18 hours after Thomas had been voted through the Senate – was seen at the time as “clearly an attempt by the White House to move beyond that searing fight and on to other issues.”
The death penalty push was primary among those “other issues,” and Barr was a staunch and repeated advocate for using executions as a crime-prevention tool during those years.
But the numbers say the deterrence crowd is dead wrong.
A 2018 report from a group that studies human rights in Iran analyzed crime data from 11 countries that have abolished capital punishment. Murder rates declined in 10 of them over the following decade.
That finding is consistent with a 2017 analysis from the Death Penalty Information Center (DPIC). The group – which takes no position on whether there should or should not be a death penalty, but questions the modern implementation of it in the U.S. judicial system – conducted a similar analysis, using data from U.S. states. Murder rates are consistently higher in states that have the death penalty than in states that have abolished it, they found. What’s more, line-of-duty killings of law enforcement were rarest in states that ditched capital punishment.
“There’s no evidence that the death penalty deters murder and there’s no evidence that it protects the police,” DPIC director Robert Dunham said in an interview summarizing that report. “Murder rates may be affected by many things, but the death penalty doesn’t appear to be one of them.”
The hard evidence against deterrence is not, however, some newfangled 21st century phenomenon Barr couldn’t have known about in 1991. Academics and criminologists have been arguing about this for decades. In fact, prior to 1975, the literature “was fairly unequivocal” against the deterrence case Barr made so vigorously in his first stint at DOJ, as Profs. James Fox and Michael Radelet put it in a paper. In 1975, a statistician named Isaac Ehrlich stunned the criminology community with a study claiming to prove that every state execution prevented eight murders that would have been committed by others. Ehrlich’s work left tangible marks on the law and politics of capital punishment, Fox and Radelet argue, “before more quantitatively capable critics could refute his work.”
And refute it they did. Over the following decades, criminologists, statisticians, and sociologists piled up evidence that not only was his eye-popping eight-to-one multiplier bogus – but so too was the idea that capital punishment deters any number of murders at all. By the late 1990s it was clear that, as Donald Beschle summarized in a 1997 article for the William & Mary Law Review, “the weight of evidence seems to refute proponents’ claims of deterrence.”
Ehrlich’s dramatic wrongness helped reshape criminal law and the politics of punishment for a generation. The episode foreshadowed the similarly academic-sounding “superpredators” bunk that helped motivate the tough-on-crime policies of the 1990s, before being thoroughly disproven only after it was far too late for generations of black kids around the country.
It is notable, then, that deterrence was conspicuously absent from Barr’s quotes in Thursday’s announcement.
Instead, he said he’s making this move simply out of fealty to the letter of the law.
“Congress has expressly authorized the death penalty through legislation adopted by the people’s representatives,” Barr said in the press release. He continued in language of retribution, rather than the deterrence arguments he’d deployed three decades prior. The government must kill these people because “we owe it to the victims and their families” in these cases, he said.
Naturally, the deterrence debate rages on despite the multitude of statistical evidence that should have settled it. Many supporters of capital punishment cling to the intuition that since people fear punishments, the gravest punishment of all must provide some additional deterring effect.
The same 1997 law review paper that adjudged deterrence statisticians had a poor case also explained that debunking deterrence doesn’t necessarily turn people off to state-sponsored legal killings.
“When faced with the weaknesses of deterrence-based consequentialist arguments,” Beschle wrote, “death penalty proponents gravitate toward arguments based on retributive theory.”
ThinkProgress has asked Barr’s team if he continues to believe that giving convicted killers the needle deters others from committing such crimes, and how Thursday’s decision squares with the bevy of evidence that Barr was wrong about deterrence in the ‘90s. We will update this story if they respond.