5-1 Milestone Two: Historical Analysis and Analysis of Relevant Criminological Theories
Southern New Hampshire University
CJ-520: Criminology and Public Policy
Dr. Mustafa Demir
August 29, 2021
Overall trends related to the use of the death penalty, especially in a more contemporary sense, have tended to track along with the American public’s response to the notion of getting “tough on crime”. National trends followed a linear progression of falling through the 1950s, rising starting in the 1960s, peaking in the early 1990s, and now seeing a downward trend through the latter half of the 2000s and much of the 2010s (Shirley & Gelman, 2015). However, these trends have not broken down evenly by region and state. While most states in the Northeast and West saw a downward trend in death penalty support, most states in the South and Midwest saw support for the death penalty either remain fairly stable or slightly increase (Shirley & Gelman, 2015). Support trends for the death penalty have also correlated with the share of the vote Republican presidential candidates get in each state (Shirley & Gelman, 2015). While it is important to distinguish between correlation and causation, this rise in support in the death penalty would track with the rise of conservatism that was embraced by the Republican Party. This can be seen in the “law and order” campaigns of Barry Goldwater and Richard Nixon to the peak of conservative political power in the 1980s with the back-to-back presidencies of Ronald Reagan and George H.W. Bush. The peak in the trend would correlate with the Clinton administration and their attempt to rebrand the Democratic Party as “tough on crime” as well. Then, with the “compassionate conservative” presidency of George W. Bush and the “post partisan” presidency of Barack Obama, this would correlate with the modern falling of support.
The most notable court cases that have shaped public policy on this topic have been ruled on by the U.S. Supreme Court. The first major case to affect public policy was Furman v. Georgia, which ruled that the use of the death penalty was unconstitutional on the grounds that it was a violation of a defendant’s 8th Amendment right against cruel and unusual punishment (Furman v. Georgia, 1972). Policy was required to change on both a federal and state level to account for this new legal precedent. However, legal precedent and policy would change again relatively soon after the Furman decision, with Gregg v. Georgia upholding the constitutionality of a Georgia statute on the death penalty and the use of the practice. This case held that the death penalty was not, in fact, a violation of the 8th Amendment and could be used (Gregg v. Georgia, 1976). The death penalty as a practice has remained legal in the eyes of the Court since the Gregg ruling, but there have been restrictions placed on the policies that can be implemented regarding it such as bans on its use on persons with “mental retardation” and minors (Atkins v. Virginia, 2002; Roper v. Simmons, 2005).
Public perception of death penalty policies has not followed a specific trend following Supreme Court decisions in the major cases listed above. Despite the Furman decision ruling that it was unconstitutional, support for the death penalty increased by 16 percent in the time between that ruling and the Gregg ruling six years later (Gallup, n.d.). Following the Gregg ruling, public support climbed until 1996. The Atkins ruling was followed by a slight decrease in support, with the Roper ruling being followed by an increase in support. While it is important to once again reiterate that correlation does not equal causation, it is likely that the highly publicized nature of Supreme Court decisions potentially influenced public perception in the wake of these cases.
Given the current trend of public opinion on the death penalty, the practice is likely to fall out of favor with a majority of Americans by the end of the 2020s, which will likely shape state and federal policy towards the abolition of the practice (Gallup, n.d). While the Supreme Court has not ruled that the practice is unconstitutional again yet, recent litigation has resulted in the Court demonstrating what it would need to see to rule that way again. The denial of writ in Hidalgo v. Arizona stated that data showing the constitutional arbitrariness of the death penalty could cause the Court to rule that it is unconstitutional (Hidalgo v. Arizona, 2018).
Rational choice theory (RCT) would best explain the development of public policy and court decisions regarding the death penalty. This theory posits that individuals make rational cost-benefit analyses prior to making decisions that would affect them (Cornish & Clarke, 1987). By that logic, when an individual commits a murder, it is believed that they made an analysis that resulted in them deciding that the killing was advantageous to their situation. Therefore, it would make sense that state and federal policy would be crafted to punish the offender proportionately and that courts would uphold these punishments as not cruel and unusual.
Theory and Departmental Policy
The proposed departmental death penalty policy uses the theory listed above in the rationale for its implementation. However, the theory is used as a point of critique to reinforce the policy’s point. Cases such as Atkins show that not all actors can be rational in a criminal justice system. Therefore, it would be in the State’s best interest to abolish a policy based on a flawed premise.
Connection to State and Federal Public Policies
Current state and federal polices rely on RCT as justification for their implementation. But as the public and courts look at the validity of this, it is likely to change in the near future.
Atkins v. Virginia, 536 U.S. 304 (Jun. 20, 2002).
Cornish, D. B., & Clarke, R. V. (1987). Understanding crime displacement: An application of rational choice theory. Criminology, 25(4), 933-948.
Furman v. Georgia, 408 U.S. 238 (Jun. 29, 1972).
Gallup. (n.d.). Death Penalty. Gallup. Retrieved August 27, 2021, from https://news.gallup.com/poll/1606/death-penalty.aspx
Gregg v. Georgia, 428 US 153 (Jul. 2, 1976).
Hidalgo v. Arizona, 138 S. Ct. 1054 (Mar. 19, 2018).
Roper v. Simmons, 543 U.S. 551 (Mar. 1, 2005)
Shirley, K. E., & Gelman, A. (2015). Hierarchical models for estimating state and demographic trends in US death penalty public opinion. Journal of the Royal Statistical Society. Series A (Statistics in Society), 1-28.
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