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That stunning conclusion drew immediate attacks. Critics, and they are legion, cite a variety of defects: Ehrlich did not compare the effectiveness of the death penalty with that of particular prison terms; his formula does not work if the years between 1965 and 1969 are omitted; and in accounting for the increase in homicides during the '60s, he neglects the possible influences of racial unrest, the Viet Nam War, a loosening of moral standards and increased handgun ownership.
To work at all, deterrence requires murderers to reckon at least roughly the probable costs of their actions. But if a killer is drunk or high on drugs, that kind of rational assessment might be impossible. Passions are often at play that make a cost-benefit analysis unlikely. Most killers are probably not lucid thinkers at their best. Henry Brisbon Jr. (see box) may be legally sane, but he is by ordinary standards demented enough to make a mess of any theory of deterrence. Says New York University Law Professor Anthony Amsterdam: "People who ask themselves those questions—'Am I scared of the death penalty? Would I not be deterred?'—and think rationally, do not commit murder for many, many reasons other than the death penalty."
Former Prosecutor Bernard Carey, until 1980 state's attorney for Cook County, favors capital punishment, sparingly used. Yet he says, "I don't think it's much of a deterrent because the kinds of people who commit these crimes aren't going to be deterred by the electric chair." Some might be encouraged. "For every person for whom the death penalty is a deterrent," says Stanford Psychiatry Professor Donald Lunde, "there's at least one for whom it is an incentive." Such murderers, says Amsterdam, "are attracted by the Jimmy Cagney image of 'live fast, die young and have a beautiful corpse.' "
The arguments for capital punishment are usually visceral or anecdotal. Ernest van den Haag, professor of jurisprudence and public policy at Fordham University, says flatly, "Nobody fears prison as much as death." Florida's Governor Graham, who has signed 45 death warrants, cites the case of a restaurant robbery seen by a customer. "Afterward," recounts Graham, "he was the only witness. So the two guys took him out to the Everglades and shot him in the back of the head. If they had felt that being convicted for robbery and first-degree murder was sufficiently different, they might have had second thoughts."
In a sense, death's deterrent power has never really been given a chance in the U.S. Even during the comparative execution frenzy of the 1930s, hardly one in 50 murderers was put to death, a scant 2%. Reppetto estimates that if 25% of convicted killers were executed, 100 a week or more, there might be a deterring effect. But it is unthinkable, he agrees, that the U.S. will begin dispatching its villains on such a wholesale basis. Even at a rate of 100 executions annually, an implausibly high figure given today's judicial guarantees, a killer's chances of getting caught, convicted and executed would for him still be comfortably low 250 to 1.
Even if executions were on television, there is no