PUBLIC SUPPORT FOR THE DEATH
PENALTY: RETRIBUTION AS JUST
DESERTS OR RETRIBUTION
AS REVENGE?
J A M E S O. F I N C K E N A U E R
Rutgers University
The U.S. Supreme Court has declared that capital punishment is not unconstitutional per se, in part because the high degree of public support for
the death penalty indicates that the American public does not consider it
to be cruel and unusual punishment. According to the Court, the public's
desire for retribution is an appropriate basis for determining that the death
penalty is an acceptable criminal sanction. This paper examines the degree
of public support for the death penalty and the basis for that support. It
also explores the differences between retribution as just deserts and retribution as revenge, and concludes by asking whether a public desire for revenge is an appropriate, enlightened basis for our capital punishment
policy.
I n its 1976 decision in Gregg v. Georgia (428 U.S. 153, 1976),
which reinstated the death penalty after a ten-year moratorium,
t h e U n i t e d States S u p r e m e C o u r t e n d o r s e d t h e i m p o r t a n c e of p u b lic opinion a n d public s u p p o r t in d e t e r m i n i n g w h a t a r e a p p r o p r i a t e
a n d n e c e s s a r y c r i m i n a l sanctions. I n t h a t decision t h e C o u r t also
said t h a t r e t r i b u t i o n w a s a l e g i t i m a t e p u r p o s e of c r i m i n a l p u n i s h m e n t , p a r t i c u l a r l y of capital p u n i s h m e n t . T h i s p a p e r e x a m i n e s t h e
m e a n i n g of t h e p u b l i c ' s s u p p o r t f o r t h e d e a t h p e n a l t y a n d t h e
m e a n i n g of w h a t t h e C o u r t b e l i e v e d w a s t h e p u b l i c ' s desire f o r r e t ribution. B o t h t h e s e issues a r e c o n s i d e r e d w i t h r e s p e c t to t h e i r i m plications for public policy r e g a r d i n g t h e d e a t h p e n a l t y .
T h e p l u r a l i t y opinion in t h e G r e g g case, w r i t t e n b y J u s t i c e
P o t t e r S t e w a r t , r e f e r r e d to t h e p a s s a g e of d e a t h p e n a l t y s t a t u t e s in
35 states a n d in t h e U.S. C o n g r e s s in t h e p r e c e d i n g f o u r y e a r s (foll o w i n g t h e 1972 case of F u r m a n v. Georgia, w h i c h h a d d e c l a r e d
capital p u n i s h m e n t as it w a s a d m i n i s t e r e d t h e n to b e u n c o n s t i t u tional) as e v i d e n c e t h a t "capital p u n i s h m e n t itself h a s n o t b e e n rej e c t e d b y t h e e l e c t e d r e p r e s e n t a t i v e s of t h e p e o p l e " (428 U.S. 153,
p a r a 14). T h e opinion also r e f e r r e d to a s t a t e w i d e r e f e r e n d u m in
JUSTICE QUARTERLY, Vol. 5 No. 1, March 1988
© 1987 Academy of Criminal Justice Sciences
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California in which the people adopted a constitutional amendm e n t authorizing capital punishment, to public referenda in Massachusetts and Illinois supporting capital punishment, and to
public opinion polls (by Gallup in 1972 and by Harris in 1973)
showing t h a t of those questioned, 57 percent and 59 percent respectively favored the death penalty. These indicators were taken
to m e a n "that a large proportion of American society continues to
regard [capital punishment] as an appropriate and necessary criminal sanction" (428 U.S. 153, para 14).
Turning to the issue of retribution as a principal social purpose of the death penalty, the Stewart opinion said:
In part, capital punishment is an expression of society's moral outrage at particularly offensive conduct. This
function may be unappealing to many, but it is essential in
an ordered society that asks its citizens to rely on legal
processes r a t h e r than self-help to vindicate their wrongs
(para 18).
The instinct for retribution is part of the nature of
man, and channeling t h a t instinct in the administration of
criminal justice serves an important purpose in promoting
the stability of a society governed by law. When people
begin to believe that organized society is unwilling or unable to impose upon criminal offenders the punishment
they "deserve," then there are sown the seeds of anarc h y m o f self-help, vigilante justice, and lynch law.
[Furman v. Georgia, supra, 408 U.S. 153 at 308, 92 S. Ct.,
at 2761 (Stewart, J., concurring)] (para 18).
. . . . Indeed, the decision that capital punishment
may be the appropriate sanction in extreme cases is an expression of the community's belief that certain crimes are
themselves so grievous an affront to h u m a n i t y that the
only adequate response m a y be the penalty of death (428
U.S. 153, para 18).
This opinion made a n u m b e r of provocative assertions: that
there is such a thing as a retributive instinct in man; that channeling this instinct serves the utilitarian purpose of promoting stability; and that retribution and desert are synonymous. Each of these
assertions will be addressed here.
This paper will review and draw implications from the research literature on the public's support for the death penalty and
the reasons for that support. Then it will develop the thesis that
because public opinion seems to be motivated so strongly by cries
for revenge r a t h e r t h a n by any desire that murderers be treated in
accordance with the principles of just deserts (as the Court seems
to believe), it is not a sound and appropriate basis for setting public
policy on this admittedly most controversial, difficult, and emotional issue.
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THE PUBLIC'S O P I N I O N OF THE DEATH PENALTY
Public opinion certainly seems to play a role in the setting of
criminal justice policy, including (and perhaps especially) policy
regarding capital punishment. (Let us put aside for the moment
the question of w h e t h e r or not it should do so.) During the legislative process in which capital punishment statutes are drafted, debated, voted upon, and ultimately signed into law, both the
legislature and the executive branch take account of the alectorate's views. There is wide variation in the way this accounting is
done, and in how systematic it is. Public opinion surveys, correspondence, meetings with constituents, letters to the editor, editorial opinion, and testimony at legislative hearings are all possible
sources of public opinion. In addition, as the representatives of the
public in the trial and sentencing process, jurors are supposed to
be the repositories of the public's attitudes and opinions. Finally,
prosecutors and judges certainly are swayed in their decisions and
actions by their perceptions of public opinion in particular cases, as
(for example) the Supreme Court in the Gregg case. What exactly
is the public's opinion about the death penalty? On what is this
opinion based? Is it informed opinion? If so, how is it informed?
In 1965, when a sample of Americans was asked: "Do you believe in capital punishment (death penalty) or are you opposed?",
only 38 percent said they were in favor (Parisi, Gottfredson,
Hindelang, and Flanagan 1979). In 1985, when interviewed by the
Gallup Poll, 72 percent of Americans said they were in favor of executing murderers (Gallup Report 1985). A 1985 Time magazine
poll found that 75 percent of those surveyed favored wider use of
the death penalty (Time 1985:17). This finding represents a considerable change, and it caps a trend of consistently increasing public
support over a 20-year period. In fact, support for capital punishment is higher now than at any time in the last 50 years (Harris
1986).
When asked w h e t h e r they thought that the death penalty was
a deterrent to committing murder, 62 percent of the 1985 Gallup
respondents said yes. In addition, a slim majority (51%) of those
interviewed said they would still favor the death penalty even if
evidence showed conclusively that it did not deter criminals. The
latter finding is important because it suggests (as has other research) that support for capital punishment may wet1 rest on other
grounds than the utilitarian argument that it prevents violent
crime, and that it may not rest on specific factual grounds at all.
The reasons given by this sample for supporting the death penalty
were revenge (20%), deterrence of crime (22%), punishment
(18%), incapacitation (16%) and the costs of keeping murderers in
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prison (11%). The large proportion of respondents citing revenge
as their reason for support is important, as is the distinction made
between revenge and punishment. These reasons will be examined f u r t h e r in some detail.
WHY DOES THE PUBLIC SUPPORT THE DEATH PENALTY?
There are m a n y possible explanations for the large increase in
public support for the death penalty. To begin with the reason
w h y people support the death penalty in the first place, some psychologists link support to such personality characteristics among
supporters as authoritarianism, dogmatism, or conservatism (Crosson 1966; J u r o w 1971; Rokeach and McLellan, 1970; Snortum and
Ashear 1972) or to early socialization experiences (Gelles and
Straus 1973). Attitudes favorable to capital punishment have also
been shown to be related to nationalism, religiousness, and racial
intolerance (Comrey and Newmeyer 1965). Studies show that persons who favor the death penalty tend to be more conservative in
their political views than persons who are opposed.
If we were to attempt to explain the increase in support for
the death penalty on the basis of these factors, seemingly we
would have to show that the American people possess more or less
of any of these characteristics in the 1980s t h a n in the 1960s.
Criminologists and others have been studying the relations between death penalty support and such socioenvironmental factors
as rising crime rates and fears of victimization. Crime rates (however imperfectly measured) surged between the mid-1960s and the
early 1970s; this period also was characterized by assassinations,
urban riots, campus disorders, antiwar protests, the hippie movement, and a widespread increase in drug use. At the same time,
there was a massive national effort to fight poverty, unemployment, and urban decay, as well as to control crime and ensure safe
streets. In addition, Watergate and the war in Vietnam shook public confidence both in the government's integrity and in its ability
to govern.
Without drawing any cause-and-effect conclusions from the
observation, we may note a confluence of three possibly interrelated social facts in the mid-1960s: crime began to increase dramatically; public support for capital punishment turned upward; and
there began a ten-year period in which there were no executions.
Rankin (1979:194) examined the correlation between violent
crime rates in the United States and public support for capital
punishment, and concluded: "The increase in support for the
death penalty [exists] within the context of a more general lawand-order syndrome which intensified approximately three years
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after relatively large increases in the violent crime rate. Because
crime in the streets was an issue in the 1968 elections, concern
about crime intensified, with a resultant hardening of attitudes toward criminals and a greater demand for harsh penalties." Rankin
found that support for capital punishment increased with the concern about halting the rising crime rate.
Rankin's findings and others like them might be explained as
follows. In about 1965, after the 1964 law-and-order presidential
campaign of Senator Barry Goldwater and the 1965 civil disorders
in the Watts district of Los Angeles, the populace began to grow
increasingly disturbed by the widely perceived social disorder, including crime, and to be frustrated by the perceived failures of the
costly "social experiments" of liberal government reformers such
as those in President Lyndon Johnson's administration. One such
experiment was the Omnibus Crime Control and Safe Streets Act
of 1968, which created the Law Enforcement Assistance Administration (LEAA). This war on crime has been referred to as the
"other" war that America lost in the 1960s and 1970s (Cronin,
Cronin, and Milakovitch 1981; Feeley and Sarat 1980). Government solutions to social problems, such as the LEAA, typically
were oversold and underfunded, and thus were doomed to failure.
The resulting decline of liberal optimism (Bayer 1981)--an optimism founded on the belief that effective policies could be fashioned to meet the challenges of crime and punishment--and the
shortcomings of the distributive justice model may be associated
with a concomitant increase in support for a retributive justice
model. This general frustration, as well as a more specific fear of
blacks' demands for civil rights and social justice, was accompanied
by the public perception that the criminal justice system was
either unable or unwilling to do anything about crime and lawlessness. This combination of fear and frustration may have stimulated a public thirst for retaliation against those considered
responsible (Stinchcombe, Adams, Heimer, Scheppele, Smith and
Taylor 1980; Taylor, Scheppele and Stinchcombe 1979; Thomas
1977; Thomas and Cage 1976; Thomas and Foster 1975; Thomas and
Howard 1977).
As a result, over the last 20 years people seem to have become
more receptive and more supportive regarding "get tough" policies
and harsher penalties. This punitiveness could be a consequence
not only of fear and frustration but also of the politicization of
crime and the politics of law and order during the same period
(Scheingold 1984). Rankin (1979"202) found that death penalty advocates favored tougher courts, laws, and policemen, and that
"support for the death penalty is associated with a willingness to
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use violence and punishment for social control." Gorecki
(1985:119) agrees t h a t the new, punitive public mood was caused by
anger about crime and by the fear of crime, and that the anger and
the fear were generated by rising crime rates. "Casting about for a
r e m e d y against pervasive wrongdoing," he says, "the American
public t u r n e d to the criminal justice system with demands for
harshness and executions, and the system has been responsive to
the public mood."
Political campaigns and candidates and the media are two of
the forces that are believed to help shape public attitudes and
opinion about crime in general and the death penalty in particular.
The two typically operate in tandem. In 1977, for example, the
"Son of Sam" killings of young persons were publicized highly in
New York City. Not coincidentally, the death penalty became a
major issue in the city's mayoral race that year. This development
was particularly ironic because the death penalty, as a m a t t e r of
state law, lies completely outside the power or purview of the
mayor of New York City or any other city. Nonetheless, then
Congressman Edward Koch, who exploited the issue aggressively,
was elected mayor.
In their examination of public support for capital punishment,
Thomas and Foster (1973:645) point out:
• . . it would be difficult for any citizen not to respond to
the high priority assigned by the media to the problem of
crime in contemporary American society, and especially
the extreme emphasis placed on 'crime in the streets' by
local, state, and national politicians . . . . we now find ourselves in a situation in which substantial attention has
been focused on the problem of crime, often by information sources that are defined as quite credible and reliable
by recipients of the information. This, in turn, may well
be expected to lead substantial segments of the public to
perceive the crime rate as rapidly increasing. Equally important in this regard is the tendency for people selectively to perceive disproportionately large increases in
those types of offenses that are most visible and most
feared; politicians have shown their keen awareness of
this tendency by emphasizing the threat of such offenses
as assault, rape, and homicide. Under such circumstances,
it is quite logical to suppose that the more the public
comes to fear victimization, the more it will demand what
it believes will be an effective deterrent."
It is believed widely, say Thomas and Foster, that crime rates
are rising rapidly, that the average citizen is in danger of becoming
the victim of a criminal offense, and that punishment provides an
effective means for controlling deviant and criminal behavior.
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Getles and Straus (1973:599) point similarly to the role of
political campaigning in stimulating support for the death penalty.
"Fluctuation in support for the death penalty over time may be
due to effective moral crusades by individuals, who, for a variety of
reasons, advocate the use of the death penalty . . . Support for
capital punishment seems to be strongly correlated with 'law and
order' campaigns by local, state, and national politicians. It is one
stark means a candidate has of displaying that he will 'do something about crime' ff elected." This was certainly the case in New
York City in 1977. When the electorate has been made aware of
the problem and has been frightened by it, it may be more receptive to the proposed solution--capital punishment. Wilson
(1983:194), for example, proposes that persons running for public
office stop acting as if they k n e w the answer to the deterrent effect of capital punishment, or "at least spend less time talking
about the usefulness of a sanction that cannot have an effect on
most of the crime we find frightening."
Stinchcombe and his colleagues (1980:131) reach a somewhat
different conclusion regarding the influential sources of public
opinion. Referring to public information and public opinion leaders as simply providing social cues, they conclude that "there is a
process of mutual reinforcement between environmental cues,
public sources of information (such as newspapers, political leaders, and community crime prevention programs), and personal experience." In other words, they note an interaction among what a
person observes for himself, what he is told by the media and politicians, and what he experiences personally. They indicate that
"while attitudes toward crime and punishment are to some extent
the outcome of fear and of believing that crime is an important
public policy problem, [these attitudes] are also part of liberal and
law-and-order world views" (139). This observation suggests that
there may be a bedrock of political, moral, and social values upon
which or into which observations, information, and experience, including information about the death penalty, must be assimilated.
Despite several possible sources of information, a question remains: Just how well is the public informed about capital punishment? Most people have no personal observations or experience
with capital punishment; they have not participated in or attended
a m u r d e r trial, nor have they known any murderers or murder
victims. In addition, most people are not aware of the empirical
research and scholarly literature on capital punishment. Therefore t h e y depend on common secondary sources, including the
news media and public officials. These sources are not always accurate, complete, or objective. Consequently there is some support
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for the notion that the American people actually know very little
about the death penalty, and even what they think they know may
be of questionable accuracy (Ellsworth and Ross 1983; Sarat and
Vidmar 1976). Assuming that this is true, we might speculate
about what the public means when it indicates that it favors the
death penalty.
In his opinion in F u r m a n v. Georgia (408 U.S. 238, 1972),
Supreme Court Justice Thurgood Marshall hypothesized that all
citizens would find the death penalty unacceptable if they were
fully informed about it. Sarat and Vidmar (1976:191) tested this
hypothesis and found that just as Justice Marshall believed~ few
persons in their sample could be said to be informed about the
death penalty. "Our subjects k n e w little about the death penalty,
particularly its effectiveness." Their conclusion? "Our results confirm Justice Marshall's expectation that the opinions of an informed public would differ significantly from a public unaware of
the consequences and effects of the death penalty."
But would people change their opinions if they were more and
better informed? There is evidence that they would not. Ellsworth and Ross (1983:148) studied 500 California residents who
were proponents, opponents, and undecided about capital punishment. Like Sarat and Vidmar, they found that their respondents
were relatively uninformed about capital punishment, b u t they
also discovered that this ignorance did not seem to keep the respondents from having strong opinions. Ellsworth and Ross concluded that "although most of the people who have made up their
minds on the issue of capital punishment believe that factual evidence concerning the relative deterrent efficacy of the death penalty is in line with their position, it appears that their position is
not based on the factual belief. The majority are quite willing to
admit that a change in the belief would have little influence on the
attitude."
The finding by Ellsworth and Ross is similar to that from
other studies, which show that most people will maintain their
support of the death penalty even in the face of considerable evidence that undercuts that support. Harris (1986), for example, in
reporting the results of a 1984 telephone poll, found that respondents' support of capital punishment was hardly affected by agreem e n t that the death penalty is carried out in an unfair and
discriminatory fashion. There is even some evidence that people
will resist acquiring new information about the death penalty
which contradicts their existing views (Lord, Ross, and Lepper
1979). This evidence casts considerable doubt on Justice Marshall's
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belief that
punishment.
a
well-informed
citizenry
would
reject
89
capital
The evidence suggests that with regard to capital punishment
the public sorts through the provided information, chooses that information with which it agrees and which reinforces pre-existing
attitudes, and discards or ignores the rest. Vidmar and Ellsworth
(1974:135) point out that this general state of being "ignorant, but
opinionated" is not unique to the death penalty issue: "A number
of studies have shown that substantial segments of the public are
ill-informed or completely ignorant about some of the most elem e n t a r y and important political and social questions." Nevertheless "it has been found that survey respondents will often endorse
positions or advocate actions even though they lack knowledge
about the subject, have no commitment to what they are endorsing, or both."
In addition, Vidmar and Ellsworth report that public opinion
is often shaped directly by the actions and statements of politicians
and other public figures. The variable that affects this shaping
seems to be the emotional and moral content of the issue under
consideration. Some issues, like abortion, school prayer, and the
death penalty, involve highly emotional questions, based on fundamental moral and social values, which are not readily answerable
by factual evidence.
Kohlberg and Elfenbein (1975a:616), who examined moral
judgments about capital punishment, concluded that "the moral
standards of the majority of Americans are such that facts about
the deterrent effect and discriminatory administration of the death
penalty do not affect the formation of their attitudes," and that
"the growth of factual knowledge, in and of itself, will not necessarily bring about a change in public opinion." They believe this is
the case because "the impact that new facts will have upon the
evolution of attitudes toward capital punishment is contingent
upon the moral principles which are invoked by persons making
judgments on the basis of those facts."
The public seem to have little or no personal experience to influence its attitudes toward the death penalty, and consciously or
unconsciously it screens the provided secondary information. At
the same time, the death penalty is a highly visible issue about
which everyone is expected to have a definite opinion. What, then,
is the nature of this opinion? It is emotional; it is largely unenlightened; it seems to be part of the individual's larger world view,
particularly the view of the so-called "social issue" which surfaced
in the 1960s and which encompassed not only crime but also riots,
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demonstrations, sexual freedom, obscenity and pornography, campus unrest, racial problems, and the general future shock of rapid
social change. Scammon and Wattenberg (1970:43) defined the social issue as "a set of public attitudes concerning the more personally frightening aspects of disruptive social change." Because these
aspects are threatening, people tend to react to t h e m with hostility; advocating the death penalty is certainly a hostile reaction.
The perceived excesses that began in the mid-1960s have led to a
conservative political and social backlash which is evident throughout American society; support for capital punishment may be only
one aspect of this backlash. Part of the move to the right is a belief that criminal behavior is the result of free choice, and is not
excusable as being determined culturally or socially or economically. According to Tyler and Weber (1982), support for the death
penalty is one aspect of a general political-social ideology; it is related to conservatism, authoritarianism, and a belief in retribution.
It is at least a plausible hypothesis that the volatile history of
the past two decades accounts for the change in public attitudes toward the death penalty. Yet it is much less clear w h e t h e r that
change has led to a concern for just and fair punishment, as some
scholars and justices contend, or to a more basic lust for
vengeance.
JUST DESERTS OR REVENGE?
As shown in the public opinion polls mentioned above, a factor
variously called retribution, revenge, or a desire to see criminals
receive their just deserts seems to have become the dominant motive for supporters of the death penalty. This development takes
place at a time when controversy and ambiguity obscure the arguments about whether the death penalty is a deterrent to murder;
these arguments may be irrelevant to many people in any event.
Let us turn now to an examination of revenge, retribution, and
just deserts. Are they the same? If not, how are they different?
What does the public really want? And is what the public wants
an appropriate, enlightened basis for public policy, in this case policy regarding the death penalty? Is this what the U.S. Supreme
Court determined to be a legitimate purpose of capital
punishment?
Retribution has a long history in the annals of criminal punishment, with origins both in ancient feudal custom and in more
"civilized" religious principles. The Old Testament gives us the lex
talionis:
When one man strikes another and kills him, he shall be
put to death. Whoever strikes a beast and kills it shall
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m a k e restitution, life for life. W h e n one m a n injures and
disfigures his fellow-countryman, it shall be done to him
as he has done; f r a c t u r e for fracture, eye for eye, tooth for
tooth; the injury and disfigurement t h a t he has inflicted
upon a n o t h e r shall in t u r n be inflicted upon him (Leviticus 25:17-22).
Classical retributive t h e o r y states that p u n i s h m e n t is justified
by backward-looking considerations. Wrongful acts must be punished; the p u n i s h m e n t is to be d e t e r m i n e d by what one has done
and (not incidentally) by who one is or what one might do in the
future. A criminal who has engaged in wrongful conduct "deserves" punishment. In receiving this punishment, the criminal
pays a debt to his or h e r fellow citizens. It is considered unfair to
those citizens who obey t h e law to allow lawbreakers to profit
f r o m their lawbreaking. I m m a n u e l Kant, the p r e - e m i n e n t theorist
of retribution, said the following about capital p u n i s h m e n t as
retribution:
If . . . he has committed a murder, he must die. In
this case, t h e r e is no substitute t h a t will satisfy the requirements of legal justice. T h e r e is no sameness of kind
b e t w e e n death and remaining alive even u n d e r the most
miserable conditions, and consequently t h e r e is also no
equality b e t w e e n the crime and the retribution unless the
criminal is judicially c o n d e m n e d and put to death . . . .
Even if a civil society were to dissolve itself by common
a g r e e m e n t of all its m e m b e r s . . . . the last m u r d e r e r remaining in prison must first be executed, so that everyone
will duly receive what his actions are w o r t h . . . (Murphy
1985:22)
Retribution follows the basic assumption that a wrongful act
must be "repaid" by a punishment, but it is not entirely clear who
is to m a k e this repayment. Must the wrongdoer repay the society,
or must the society repay the wrongdoer? This distinction goes to
the h e a r t of the difference between just deserts and revenge.
In his discussion of retribution and the death penalty, Gibbs
(1978:294) defines retribution as "the legal p u n i s h m e n t of an individual, with the p u n i s h m e n t prescribed by law solely for the reason that those on w h o m it is to be inflicted deserve it." Gale
(1985:999) likewise defines retributive p u n i s h m e n t as proceeding
" f r o m the deeply rooted and widely shared moral intuition that
criminal p u n i s h m e n t is and should be inflicted on criminal offenders because t h e y deserve it." H e r b e r t P a c k e r (1968:37), a noted
scholar of criminal punishment, indicates that retribution "rests on
the idea that it is right for the wicked to be punished: because
m a n is responsible for his actions, he ought to receive his just
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deserts." These definitions suggest t h a t the idea of punishment being deserved is an important element of retribution.
This "desert" element results in an overlapping of retribution
and just deserts, and blurring of the distinctions between them.
Just deserts proponents, such as von Hirsch (1976:45-56), object to
the use of the term "retribution" to describe the sentencing philosophy t h a t t h e y espouse. Retribution, says von Hirsch, suggests
that "the offender should somehow be 'paid back' for his wrong"
and this has the notion of a "requital-of-evil." "Retribution" is
considered a pejorative term, synonymous with "vengeance" and
"revenge." Thus, say the supporters of just deserts, if retribution
means paying back the offender, we need a different term, namely
"just deserts." On the other hand, Jacoby (1983:1) argues that retribution and revenge are identical concepts. She says that "retribution" is used as a euphemism for "revenge," although the two
are "virtually synonymous." This euphemism is necessary, she believes, because vengeance (i.e., revenge) is not "a legitimate concept in the modern code of civilized behavior."
As von Hirsch (1976:51) defines just deserts, "the offender
may justly be subjected to certain deprivations because he deserves
it; and he deserves it because he has engaged in wrongful conduct--conduct t h a t does or threatens injury and that is prohibited
by law." According to a f u r t h e r basic assumption underlying this
form of retribution, it seems that a wrongful act must be repaid by
a commensurate punishment. "Commensurate" means that the severity of the punishment must fit the seriousness of the c r i m e - neither too severe nor too lenient.
The confusion surrounding the three terms--"revenge," "retribution," and "just deserts"--implies that there are really two
versions of retribution. In one version (the bad version, in some
people's view), the criminal is paid back. "You h u r t me, and I will
h u r t you . . . .
And if I cannot h u r t you myself, I demand that you
should be h u r t by others" (Gardiner 1958:119). This is retribution
as revenge and vindictiveness. On the basis of this version, von
Hirsch and others reject the term "retribution" and prefer to call
it "just deserts." In a second version (the seemingly acceptable
one according to the Supreme Court and some scholars of punishm e n t philosophy), "retribution" means that the criminal pays back
for the h a r m he or she has done, which the desert theorists call
"just deserts."
PUBLIC OPINION AND DEATH PENALTY POLICY
Confusion of terms has affected the validity of the results of
public opinion surveys. In their 1981 survey of Seattle residents,
FINCKENAUER
93
Warr and Stafford (1984) measured the goal-of-punishment variable, which they called "retribution," by the response "make t h e m
pay for their crimes." This response (at least the words "make
them") sounds somewhat like the "revenge" version of retribution,
but the researchers' definition of this item was "recompense or
just deserts." The studies which examine the relation between retributive sentiments and support for the death penalty generally
have employed the concepts of desert and retribution interchangeably. Support for retribution has been taken to mean that citizens
who are "motivated to support the death penalty as a means of restoring justice believe that the death penalty is a just or fair punishment for some crimes" (Tyler and Weber 1982"30). Construed
in this way, these studies found substantial public support for "retribution" as a principal reason for permitting the death penalty.
Vidmar and Ellsworth (1976), for example, concluded from
their research that retribution seemed to be an important motive
in attitudes toward capital punishment. Sarat and Vidmar (1976)
also found that "retributive beliefs about criminal punishment
[were] strongly and significantly related to capital punishment support." Lotz and Regoli (1980) reached the same conclusion in a
survey of 1200 residents of Washington State. Similarly, Warr and
Stafford (1984:99, 104) found that "proponents of retribution and
normative validation are most likely to favor the death penalty."
They concluded, "Retribution is by far the most frequently cited
justification of p u n i s h m e n t . . , those who view retribution as the
most important purpose of punishment overwhelmingly favor capital punishment."
Thus we are faced with a situation in which considerable support for a retributive doctrine of punishment exists both in the
general public and among judges, philosophers, and legal scholars.
In part this support has developed because of a loss of confidence
either in deterrence or in rehabilitation. 1 More important, the
support may be based on two different understandings of retribution: one which equates it with revenge and another which
equates it with just deserts, w h e t h e r or not it is called by that
name.
1 Retribution seems to play a lesser role and rehabilitation a greater role in
less serious crimes. Flanagan and Caulfield (1984) found that public opinion favored rehabilitation over punishment and societal protection as the ideal general
emphasis of prisons. Thomson a n d Ragona (1987) found "a good deal of [public]
support for rehabilitation" when they asked an Illinois sample about sentencing
goals in sentencing hypothetical cases of residential burglars, a relatively common
type of offender. Rehabilitation obviously cannot be a goal of capital sentencing,
but one implication of findings such as these is that the public might be less vengeful in noncapital cases.
94
DEATHPENALTY SUPPORT
In view of t h e significance attached by the S u p r e m e Court to
public opinion as a source of evidence of c u r r e n t social values on
this issue, and in view of the confusion over definitions of the relevant concepts, it seems important and necessary to ask w h e t h e r
the general public wants and approves the same thing as some
scientists, penologists, and jurists. We can offer reasonable argum e n t s and evidence t h a t the answer to this question is no.
Although retribution has b e e n sanctioned by t h e S u p r e m e
Court as an appropriate purpose of capital punishment, it is at
least doubtful w h e t h e r revenge would be so viewed in light of the
Court's concern t h a t p u n i s h m e n t comport with the evolving standards of decency t h a t m a r k the progress of a m a t u r i n g society
(Trop v. Dulles, 356 U.S. 86, 1958). T h e public's desire for revenge
would seem to be a strange, even u n s e e m l y "moral principle" for
t h e Court to use in determining that capital p u n i s h m e n t does not
constitute cruel and unusual punishment. Justice Marshall argued
to this effect in F u r m a n v. Georgia (498 U.S 238, 1972); he said t h a t
if public opinion is to be used as a test of evolving standards of decency in a m a t u r i n g society, this opinion must not originate in a
desire for vengeance because revenge, which he equated with retribution, is an outdated principle of justice. As already indicated,
however, a majority of justices in the later Gregg case approved of
retribution but defined it as just deserts. T h e r e f o r e the distinction
b e t w e e n revenge and t h e "just deserts" type of retribution is of
critical importance.
T h e philosopher Jeffrie G. M u r p h y (1979:230, 232) says: " T h e
t h e o r y [of retributivism] is not an a t t e m p t to give approval to such
barbaric motives as a desire for vengeance or vindictiveness. T h e
only motive behind it is the desire to do justice. Thus retributivism is not an irrational cry for m o r e and nastier p u n i s h m e n t s . . .
Retributivism grounded on fairness can at most d e m a n d a kind of
proportionality b e t w e e n crime and punishment." These statements reflect the "just deserts" view of retributivism. Revenge, on
the o t h e r hand, is not constrained by t h e legal niceties (and necessities) of blameworthiness, proportionality, fairness, and due
process.
This is much m o r e t h a n the simple distinction that Wilson and
H e r r n s t e i n (1985:498) make, for example, w h e n t h e y state: " W h e n
the individual restores equity [to the injured parties], it is revenge;
w h e n the legal system does it, it is justice." T h e desire for revenge
is a highly personal emotion, derived f r o m anger. In the words of
a recent w r i t e r of a l e t t e r to the editor of the N e w York Times
(September 8, 1986): "Revenge is even m o r e h u m a n t h a n love,
FINCKENAUER
95
honor or forgiveness. And while it may not be our loftiest emotion, it is clearly our most powerful." Unlike just deserts, which
demands that the offender pay back to society to make recompense for the h a r m done, revenge depersonalizes, devalues, and
seeks even to destroy the offender as a way of paying t h e m b a c k - as a way of getting even. Gale (1985:1033) points out that revenge
"focuses on retaliation and tries to satisfy the victim's or society's
desire 'to strike back at the criminal.' "
The essence of revenge is perhaps captured best in a respondent's statement quoted by Kohlberg and Elfenbein (1975b:267) in
their study of moral judgements about capital punishment:
Is it ever right to give the death penalty? Yes, for your
multiple murders, your heinous crimes, whatever the hell
they are. Now my reason for this is not necessarily keeping others from later committing the crimes. It's just simple revenge, I guess, or an eye for an eye--just obliterate
this cancerous person. I t h i n k you're never going to
change this thing in society, this thing that says obliterate
him. The man on the street cannot cope with someone
who can m u r d e r seven nurses walking around free.
Maybe I can't cope with it, so I'm saying this man cannot
live with me anymore. He must die. I think society has
always felt this way.
This kind of revenge is the most primitive form of retribution,
and in this sense the two concepts are related. Some people argue
that it is wrong to attribute to the public this kind of "primitive,
uneducable bloodthirstiness" (see Amsterdam 1982:353). Many
others, however, accept revenge as a normal, natural h u m a n response--a response which wants criminals to suffer as their victims did. Susan Jacoby (1983:241) says: "Sheer anger, rather than
an assertion of society's right to punish its most violent members,
would seem to be the most powerful psychological force underlying the perennial appeal of the death penalty as a particular form
of punishment." She adds: "Popular support for capital punishment is grounded in the conviction that criminals ought to be paid
back for their violent deeds and that they are not now being punished in sufficient measure. This conviction is neither illegitimate
nor childish; to deny it the respect it deserves is to encourage the
boundless outrage that generates demands for boundless retribution" (289).
Testing w h e t h e r Amsterdam or Jacoby is right brings us back
to public opinion. 2 The 1973 Harris Survey cited in the Supreme
2 Although we recognize the difficulties of the task, it might be possible to do
what has not yet been done, namely to draw empirically the distinctions between
96
DEATH PENALTY SUPPORT
C o u r t ' s G r e g g d e c i s i o n f o u n d t h a t 40 p e r c e n t
dorsed the statement:
of the sample en-
" T h e B i b l e is r i g h t w h e n it p r e a c h e s a n e y e
for an eye and a tooth for a tooth." Forty-one percent agreed with
the statement:
murder
"Someone who has committed a terrible crime like
is a n a n i m a l a n d d e s e r v e s t o b e e x e c u t e d "
Ellsworth
1976:133).
(Vidmar and
These are not insignificant proportions.
1981 A B C N e w s - W a s h i n g t o n
A
P o s t P o l l f o u n d t h a t 42 p e r c e n t o f
t h e i r s a m p l e c i t e d r e v e n g e ( d e f i n e d as " a n e y e f o r a n e y e " - - - as
their justification for the death penalty (Alderman, Cranney, and
B e g a n s 1981); t h i s w a s t h e m o s t f r e q u e n t l y c i t e d j u s t i f i c a t i o n . T h e
1985 G a l l u p P o l l , d e s c r i b e d e a r l i e r , a l s o f o u n d r e v e n g e to b e t h e
just deserts and revenge as these concepts relate to motivations underlying support
for the death penalty. The following section describes such an attempt.
A respondent sample of both proponents and opponents of the death penalty
would be presented with a description of the case of a convicted capital defendant.
This description would include the facts of the crime, aggravating and mitigating
factors, the defendant's prior record, and any other information normally available
to sentencing juries in capital cases. The respondents then would be presented with
a series of statements (operationalizing the concepts of just deserts and revenge) in
the form of paired comparisons; they would be asked to choose the statement from
each pair which represents the more important consideration in deciding whether
the death penalty or life imprisonment (without parole) is the more appropriate
penalty in this case. Respondents then would be asked to choose between the two
penalties for this defendant.
Because the case description itself would not be problematical, it will not be
discussed further here. On the other hand, it is both difficult and complex to create
items that operationalize just deserts and revenge as conceptually distinct. It seems
sensible to start with the fact that certain words and phrases are associated with
these concepts and seem to provide the basis for the "paired statements" method.
The concept of just deserts, for example, is associated with due process, fairness,
justice, and proportionality. Revenge is associated with getting even, paying back,
retaliation, vindication, taking reprisal, and returning evil for evil. The following
statements incorporate these words and phrases:
Just Deserts
1. The only motive behind choosing a penalty is the desire to do justice.
2. The punishment should be proportionate to the seriousness of the
crime.
3. Actions by the state must not repeat the irrationality of murderers.
4. Murderers should see their punishment as their fair and just deserts.
5. Murderers should pay society back equally to the harm they have
done.
Revenge
1. Following the Bible, our courts should "execute wrath upon him that
doeth evil."
2. The state has an obligation to pay murderers back.
3. "When one man strikes another and kills him, he shall be put to
death," as the Bible says.
4. Those who hurt deserve to be hurt in return.
5. Society has a right to take revenge on murderers.
Each "just deserts" statement would be paired with each "revenge" statement
for a total of 25 pairs. If the "just deserts" items on the one hand and the "revenge
items" on the other are reasonably alike as representations of their respective concepts, the choices of these items should cluster: a respondent who chooses one "just
deserts" item should choose "just deserts" items consistently from each of the pairs.
If this does not happen, obviously something is wrong with the measures. In addition, it would be expected that the supporters of the death penalty would be more
likely to choose "revenge" than "just deserts" items. If that does not happen, it refutes the thesis developed here. Additional items could be developed, and the relevant characteristics of the case description could be varied systematically as further
refinements of this approach.
FINCKENAUER
97
m o s t f r e q u e n t justification f o r executions; 30 p e r c e n t chose this
response.
A public o p i n i o n s u r v e y of 500 C a l i f o r n i a r e s i d e n t s b y Ellsw o r t h a n d Ross (1983) i n c l u d e d a n u m b e r of " r e v e n g e " ( p a y i n g
b a c k t h e c r i m i n a l ) items. T h e s e i t e m s a n d t h e p r o p o r t i o n of prop o n e n t s of t h e d e a t h p e n a l t y w h o a g r e e d w i t h t h e m w e r e as
follows:
•
" W h e n a t e r r i b l e c r i m e like m u r d e r h a s b e e n c o m m i t t e d , society b e n e f i t s m o r e if t h e m u r d e r e r is
e x e c u t e d t h a n if h e is s e n t e n c e d to life i m p r i s o n m e n t " (84.7%).
•
"Society h a s a r i g h t to g e t r e v e n g e w h e n a v e r y serious c r i m e like m u r d e r h a s b e e n c o m m i t t e d "
(44.9%).
•
" S o m e t i n m s I h a v e felt a s e n s e of p e r s o n a l o u t r a g e
w h e n a convicted m u r d e r e r was s e n t e n c e d to a
p e n a l t y less t h a n d e a t h " (78.9%).
•
"There are some murderers whose death would
give m e a s e n s e of p e r s o n a l satisfaction" (34%). 3
CONCLUSIONS AND IMPLICATIONS
T h e p r o p e r r o l e (if a n y ) of public o p i n i o n in i n f l u e n c i n g criminal p u n i s h m e n t policy is at issue h e r e . Gibbs (1978:298) points out
t h a t o n e of t h e e s s e n t i a l f u n c t i o n s of t h e c r i m i n a l l a w is t h e " p r o t e c t i o n of t h o s e accused of a c r i m e f r o m t h e u n c o n t r o l l e d passions
of t h e public for v e n g e a n c e . O r d i n a r i l y , o n e t h i n k s of t h o s e passions as p r o m p t i n g t h e c i t i z e n r y to ' t a k e t h e l a w into t h e i r o w n
h a n d s , ' b u t a l l o w i n g public o p i n i o n to dictate s t a t u t o r y p e n a l t i e s or
judicial rulings is n o t a n a l t o g e t h e r d i f f e r e n t m a t t e r . " It is m y cont e n t i o n h e r e t h a t t h e public's desire for r e v e n g e is dictating public
policy r e g a r d i n g t h e d e a t h p e n a l t y .
P h i l i p H a r r i s (1986:453), w h o c o n d u c t e d his o w n s t u d y of p u b lic a t t i t u d e s t o w a r d t h e d e a t h p e n a l t y , concludes t h a t "poll d a t a
a r e c o n s i s t e n t in s h o w i n g t h a t s u p p o r t f o r t h e d e a t h p e n a l t y is
l a r g e l y a m a t t e r of e m o t i o n : r e v e n g e is a m o r e p o w e r f u l r a t i o n a l e
t h a n a n y of t h e u t i l i t a r i a n justifications." H a r r i s also concludes
3 These items were administered recently to a group of 116 undergraduate
university students. Two-thirds of the students indicated that they were proponents of the death penalty. Of this group, 86 percent agreed that they sometimes
felt a sense of personal outrage when convicted murderers did not receive the death
penalty; 75 percent agreed that society benefits when murderers are executed; 60
percent felt that society has a right to take revenge; and 70 percent said they would
derive personal satisfaction from the death of some murderers. These statements
do not exemplify concern for justice, fairness, and due process; the students' responses indicate that they are even more revenge-minded than members of the general population sampled in other surveys.
DEATH PENALTY SUPPORT
that "a just deserts response is unlikely to be seen as the main justification for the death penalty," but, he adds, we should assume
that "few people, if given the opportunity to consider the consequences, would desire a criminal justice system dominated by emotion rather than reason." In regard to the death penalty, however,
this statement seems to be less true, and in fact may not be true at
all.
Kohlberg and Elfenbein (1975b:251) contend that the Supreme
Court's notion of evolving moral standards had a sound basis in social-scientific evidence, and that "moral standards are . . . slowly
evolving toward principles of punitive justice which deny the value
of retribution." The evidence cited above, however, suggests
strongly that the Kohlberg-Elfenbein conclusions are wrong.
Harris, Kohlberg and Elfenbein, and o t h e r s - - m a y b e even the
Supreme Court majority in the Gregg decision--probably would
reject revenge as a sound basis for determining public policy. Yet
doing so simply by concluding that retribution is just deserts (not
revenge) and that this is really what the public wants does not
make that interpretation valid and therefore acceptable. Is this
kind of misconstrued public opinion a good foundation for public
policy? It certainly seems not. Flanagan and Caulfield (1984:31),
among others, point to the need for public officials to be aware of
and sensitive to the public's opinion on issues (including, it appears, such emotionally charged issues as the death penalty), but
they emphasize that "few would endorse the practice of policy development that flows reactively from 'poll watching.' " If the public's support of the death penalty truly is based on the
"illegitimate" justification of revenge, the U.S. Supreme Court
must reassess the weight it has given to public opinion and to the
public's desire for retribution in setting public policy on the death
penalty.
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