36 The Death Penalty in the OSCE Area supported the execution of Timothy McVeigh, the bomber of the Murrah Federal Building in Oklahoma City, Oklahoma. Rationales The death penalty serves two principal social purposes: retribution and deterrence. Under retribution theory, a particular punishment is appropriate because the offender morally deserves it. Far from relying upon a crude notion of “vengeance” (as capitalpunishment opponents often mischaracterize it), retribution is a sophisticated justification for capital punishment that accounts for an offender’s moral blameworthiness based on the severity of the wrong he has committed against the community. As the Supreme Court has explained: “[C]apital punishment is [considered] an expression of society’s moral outrage at particularly offensive conduct … an expression of the community’s belief that certain crimes are themselves so grievous an affront to humanity that the only adequate response may be the penalty of death.”29 While deterrence is a less favoured rationale for the death penalty than retribution, recent academic studies applying multiple regression analysis to state and county capital-case data suggest that the murder rate is significantly reduced by both death sentences themselves and actual executions.30 One of these studies suggests that 18 murders on the average are deterred by each execution.31 While these studies are not without their critics,32 they have led two prominent legal scholars to suggest that “[i]f the current evidence is even roughly correct … then a refusal to impose capital punishment will effectively condemn numerous innocent people to death.”33 Legal Framework The current legal framework for imposition of the death penalty is the result of the Supreme Court’s 1972 opinion in Furman v. Georgia, 408 U.S. 238 (1972). In that case, the Supreme Court effectively invalidated all existing capital sentencing schemes. Although the Furman Court did not hold capital punishment to be unconstitutional 29 30 Gregg v. Georgia, 428 U.S. 153, 183-84 (opinion of Stewart, Powell, and Stevens, JJ.) See Hashem Dezhbakhsh et al., Does Capital Punishment Have a Deterrent Effect? New Evidence from Postmoratorium Panel Data, 5 Am. L. & Econ. Rev. 344 (2003); H. Naci Mocan and R. Kay Gittings, Getting Off Death Row: Commuted Sentences and the Deterrent Effect of Capital Punishment, 46 J. Law & Econ. 453 (2003); Joanna M. Shepherd, Deterrence Versus Brutalization: Capital Punishment’s Differing Impacts Among States, 104 Mich. L. Rev. 203 (2005); Joanna M. Shepherd, Murders of Passion, Execution Delays, and the Deterrence of Capital Punishment, 33 J. Legal Stud. 283, 308 (2004); Paul R. Zimmerman, State Executions, Deterrence, and the Incidence of Murder, 7 J. Appl. Econ. 163 (2004). 31 32 Hashem Dezhbakhsh et al., ibid, p. 344. See John J. Donohue and Justin Wolfers, Uses and Abuses of Empirical Evidence in the Death Penalty Debate, 58 Stan. L. Rev. 791 (2005). 33 Cass R. Sunstein and Adrian Vermule, Is Capital Punishment Morally Required? Acts, Omissions, and Life-Life Tradeoffs, 58 Stan. L. Rev. 703, 705 (2005).