Paradoxically the crime for which the death penalty is most often provided and applied, namely murder, is one of the offences least likely to be deterred. It is universally recognized that homicide is most frequently an emotional and impulsive crime, rarely subject to control by reason or fear of consequences. In the majority of cases the crime is the result of a sudden impulse or a violent over-mastering passion. The high emotions and strong motivations involved are likely to preclude a careful consideration of consequences or to outweigh the threat of any punishment be it life imprisonment or even death. Quite often the victim is closely associated with the offender.

A large number of homicides are committed under the influence of alcohol, drugs, sexual stimulation, or provocation with the thought of punishment hardly crossing the mind of the killer. Only a small percentage of all criminal homicides are truly thought out and premeditated. This small percentage is usually perpetrated by persons as convinced of their ability to escape detection as to rule out all thought of consequences. As Calvert⁹ pointed out, one of the most common characteristics exhibited by the murderer who commits an apparently cold-blooded crime is an exaggerated sense of confidence in his ability to escape detection.

The undeterrability of many potential killers

The act of killing is quite commonly committed by mentally deranged or psychologically abnormal individuals under the spell of an obsession, an irresistible impulse or under the pressure of some unusual circumstances. Abnormal offenders, offenders suffering from mental illness, those reacting to provocation and those acting under the influence of alcohol or drugs commit their crimes while in a state of mind that does not enable them to foresee or to consider the consequences of their actions. The more savage, heinous, and atrocious the crime is, the greater is the likelihood that the criminal will be declared not guilty be reason of insanity. Many of the cases cited in support of the death penalty or to justify its retention are cases to which the death penalty does not apply because of the insanity of the offender.

Another category of murderers comprises individuals who are actually attracted by the prospect of death. And still another type is attracted by the notoriety the principal actor in a murder trial gets. In such cases the death penalty is likely to act as an incentive rather than a deterrent. It might even exercise a morbid fascination.

Professional killers, or hired guns as they are sometimes called, often mentioned in discussions advocating the death penalty, consider punishment, be it death or otherwise, a professional risk in the same way a physician considers the risk of contamination or a race-driver the risk of a car crash. The great majority of these killers are adventurers who are not afraid of death, they are rather attracted by it in the same way mercenaries are attracted to the dangers of war.

As to terrorists and other political criminals, often singled out as a group to whom the death penalty should be applied, their fanaticism and dedication to their cause counteract and neutralize whatever legal threat is meant to deter them. Moreover, many of them do seek through their actions their own self-destruction, destruction which they view as the easiest and quickest way to the state of martyrdom they aspire.

The death penalty cannot be an effective deterrent to those who are indifferent to death, are not afraid of it, or those who have a conscious or unconscious desire to die. The large percentage of murderers who commit or attempt suicide fall into this category. Figures from some European countries show that one quarter to one half of murder cases are followed by the suspect's suicide.

According to West⁵¹ something like half of the murders in England are followed by the suicide or attempted suicide of the aggressor.

Home Office researchers Gibson and Klein¹⁹,²⁰ report in their study of murder in England and Wales in the years 1952-1960 that about one third of all

suspects in cases finally recorded as murder committed suicide. In over half of the murders known to have been committed by females suicide followed the crime.

A Danish study by Siciliano42 covering all homicides in Denmark over a period of 28 years reported that 42.2% of the Danish killers subsequently killed themselves and a further 9.6% made a serious suicidal attempt. The incidence of suicide was particularly high among female offenders with 63.9% killing themselves and 16.1% making serious suicidal attempts. Obviously none of these murders would have been prevented had the death penalty been in effect in Denmark during that period.

Another category of potential killers unlikely to be deterred by the prospect and threat of the death penalty are those who see the ultimate sentence as a way of achieving a death wish. In such cases capital punishment acts as a direct incentive to murder.

Abrahamsen²,³ and Hurwitz²³ cite the epidemic of indirect suicides that took place in Norway and Denmark in the 17th and 18th centuries when depressed people committed murder in order to be put to death since they would not commit suicide for religious reasons. These cases were so frequent that a special law had to be passed exluding such individuals from the death penalty to stop this particular type of homicide. Several recent cases reported in the literature confirm that this form of indirect suicide by means of the death penalty still exists.

Two important factors that weaken to a considerable extent whatever deterrent effect the death penalty may have are the time dimension and man's inability to conceive of his own death. This latter phenomenon has been discussed and documented by many psychiatrists.

Modern life is full of hazards. But the dangers in everyday life do not stop people from going about their daily activities oblivious to the risks involved. This is made possible by this peculiar aspect of human psychology: the inability of man to conceive of his own death. It is this inability that explains why the risk of accidental death does not prevent people from driving or flying, autoracers or bull-fighters from competing, etc. It explains why the risk of death from lung cancer or from liver cirrhosis does not prevent people from smoking or drinking.

The British Select Committee on Capital Punishment noted that

"The mass of mankind put death in the far distance and push it into the doubtful future. Men peril it for trifling aims. Some are reckless of others, reckless of life itself. Be its consequences what they may, they will take them. Some dodge death and think they can evade all its penalties; and flatter themselves that, whatever the penalty, they will never be found out".⁴⁵

f) The remoteness of the threat

For punishment to elicit the desired behavioural response from the potential killer it has to pose an immediate threat of unavoidable dire consequences. The threat the death penalty poses is both remote and improbable. It is well known that the threat of the most dire consequences can have little effect if the prospect is uncertain and distant in time. The threat of hell and damnation has not been effective in deterring people from sin and it would be too naive and too optimistic to expect the death penalty to deter them from crime. In both cases the effectiveness of the threat is greatly weakened by its remoteness and uncertainty. Even if potential killers were rational and careful calculators of gain and loss, as some assume they are, the remoteness of the threat would always tip the scale against the death penalty. As Honderich puts it

". . . it is a truism that people do not choose between possible courses of action in a prudential way if the possible consequences of one course are distant in time and the consequences of the other immediate. A penalty is a distant possibility; the gain from an offence is usually immediate".²²