The Political Economy of Death Penalty Abolition

24 Pages·2015·0.63 MB·English

by  Jerg Gutmann

Pulling Leviathan’s Teeth
–
The Political Economy of Death Penalty Abolition

Jerg Gutmann*

Abstract
It is not obvious why a state should willingly give up its harshest legal
punishment and thus abandon an effective instrument at the disposal
of politicians to deter the opposition. Until now, the social science
literature has explained the fact that some states abolish capital
punishment while others retain it by drawing on differing values held
by their respective citizens and politicians. In this article, I propose
and empirically test a political economy model in which politicians
are more likely to give up the death penalty if it is either not of
political value to them or if the process of abolition serves as a costly
signal during periods of transition. The hypotheses derived from this
political economy model are tested against competing cultural and
socio-economic explanations from the literature. The results of a
stratified Cox model support the argument of signaling, but also the
independence of the judiciary can promote abolition of the death
penalty.
Keywords: Capital punishment, death penalty abolition, political economy, positive
constitutional economics, spatial policy diffusion.
JEL Classification: K14, K42, P16, P26, P48, Z18.

* Institute of Law & Economics, University of Hamburg, Johnsallee 35, 20148 Hamburg, Germany.
Tel.: [phone], e-mail: [email protected].
The author thanks Mila Versteeg and Tom Ginsburg for sharing their respective data on the constitutional
prohibition of the death penalty. Helpful comments and suggestions came from Agnes Strauß, Dalia
Fadly, Dina El-Sayed, Jiwon S. Lee, Konstantinos Pilpilidis, Marwa El-Abhar, Rola El-Kabani, Stefan
Voigt and Teresa Wittgenstein.
I. INTRODUCTION
Constitutional Political Economy, the study of the choice of rules within which actions of
representatives of the nation-state are taken, has grown significantly in scope and importance
over the last decades. Many of these studies are concerned with the allocation of competences
among political actors, e.g., by installing federalism, judicial independence or a particular
form of government (see Voigt 2011 for an overview). Less attention has, however, been paid
to politicians’ self-commitment regarding the domestic use of force. Given that economists
work under the premise that politicians are primarily motivated by self-interest, this neglect is
surprising. Political agents are assumed to maximize the rents they can appropriate in office.
Yet, in practice politicians seem to willingly constrain themselves to not use instruments that
could limit entry into the political market. Their use could prolong incumbents’ expected
tenure and increase their discretion to extract political rents. The death penalty is one such
instrument with the potential to deter or eliminate political opponents. This article aims for
explaining the abolition of the death penalty as a result of rational political decision-making.
The conditions under which politicians are willing to constrain themselves are a core research
interest of constitutional economics (Buchanan 1975:13). Liberal political philosophy assigns
a legal monopoly on violence to the state in order to overcome the ‘natural state,’ where all
fight against all and life is ‘solitary, poor, nasty, brutish, and short.’ Thomas Hobbes, like
many others, has argued for the necessity to vest sufficient power in Leviathan (i.e., the state)
to keep its citizens in check. At the same time Hobbes (1651, Ch VI, n 3) recognized that
politicians may not be interested in having sufficient power to oppress all citizens. Hence,
politicians might benefit from credibly committing themselves to abstain from a set of
possible actions. This can be interpreted as the proposal of a state with a powerful chief
executive whose actions are reviewed by an equally strong and independent judiciary.
Although the beneficial consequences of judicial independence have been demonstrated
empirically (Feld and Voigt 2003; Voigt et al. 2015), it is still under-researched why only
some countries implement such constraints on the executive.1 Understanding politicians’
differing incentives to abolish the death penalty could, more generally, add to an economic
theory of political self-commitment.

1 Hayo and Voigt (2007, 2012) offer insights regarding both de jure and de facto judicial independence.
More recently, others have studied the decision to adopt judicial review (Ginsburg and Versteeg 2014).
From an economic point of view it is difficult to rationalize that the state should not use the
death penalty, e.g., to deter murder and other severe crimes. Capital punishment might even
be ‘morally required’ when its practice is expected to save more lives than are taken
(Sunstein and Vermeule 2005). This argument by Sunstein and Vermeule is based on strictly
utilitarian assumptions and uses the reasoning that there is no convincing justification for
differentiating between the casualties caused by action or inaction of the state. Consequently,
even the death penalty for juveniles would be justified, if it had a sufficient deterrent effect
on deadly violence. Economists commonly label the death penalty as a form of regulation,
comparable, e.g., to gun control, where the state also has to take decisions over life and death.
The principal difference is that the government can decide a specific person’s fate when it
applies the death penalty. This suggests—at least within a utilitarian framework—that the
need to abolish capital punishment can be primarily explained by fear of its abuse.
Although extralegal instruments like intimidation, torture and murder always constitute an
alternative, politicians in many countries recurrently rely on the justice system―including
capital punishment―to dispose of defiant political activists, journalists and political
opponents. Modern-day examples of this practice are abundant and range from Belarus over
Tunisia to the Sudan. Two of the more extreme cases are Egypt where after a military coup in
2013 hundreds of members of the Muslim Brotherhood were sentenced to death and North
Korea with its excessive use of capital punishment even for minor forms of political
dissidence. Both have been criticized by human rights organizations for disregarding
international law and not facilitating fair trials. Even when capital punishment is mostly
applied to non-political crimes, it can be of value to politicians, as argued by Schabas
(2013:219) in the case of Iran: “Regardless of the crimes for which it is imposed, [it] is a
message of terror targeted at those tempted to resist the regime.” Furthermore, the death
penalty may be of value to the government of a country where it is not regularly applied, as
long as its imposition can be credibly threatened. The general legality of the death penalty
consequently also plays a role in regimes that are sometimes labeled de facto abolitionist, in
the sense that they have not carried out executions for at least ten years.2
Although the primary purpose of the death penalty is the deterrence of severe crimes, mere
differences in the evaluation of its effectiveness or different preferences for the severity of

2 The difference between de facto and de jure abolition can be though of as that between policies and
institutions. Only the latter are durable and shape the future distribution of de facto political power
(Acemoglu and Robinson 2006:177). Hence, this study focuses on the legal status of capital punishment.
criminal punishment are questionable and unsatisfactory explanations for the varying legal
status of the death penalty in countries around the world.3 Preferable to such idiosyncratic
explanations would be a political economy model that systematically explains why politicians
have a differing willingness to or interest in abolishing capital punishment. It is argued here
that the abolition of the death penalty is largely motivated by the incentives set by specific
political institutions. In some political systems leaders are more able to or dependent on
threatening the use of lethal force than in others. While it would be without significant policy
relevance if one could identify the country characteristics that are correlated with values that
encourage or discourage the use of capital punishment, it is highly relevant to determine the
political institutions that incentivize governments to commit themselves to relinquishing the
domestic use of targeted violence―at least that which is exercised via the judicial system.
The empirical literature on the determinants of death penalty abolition is to this point
dominated by contributions from political scientists (McGann and Sandholtz 2012; Neumayer
2008), sociologists (Kent 2010; Mathias 2013) and legal scholars (Greenberg and West
2008). Among these, Neumayer (2008) is the most encompassing analysis of the relevance of
political factors for death penalty abolition. Neumayer estimates a number of Cox regression
models for a sample of up to 151 countries. His results show the importance of political and
legal factors for abolition, whereas economic and cultural country characteristics appear to
play no considerable role. Nevertheless, from an economic point of view, Neumayer’s
theoretical model is not very useful, as it draws heavily on differences in values as
explanatory factors, but almost completely ignores the incentives of rational politicians. Yet,
virtually the entire empirical literature could be criticized on these grounds.
The only contributions to this body of literature from an explicitly economic perspective are
two articles by Mulligan et al. (2004) and Mulligan and Shleifer (2005), which deal with the
legal status of the death penalty as just one aspect of the broader questions they are
addressing. The research question of Mulligan et al. (2004) is whether more democratic
countries systematically use different public policies than less democratic ones. Mulligan et
al. find little to no effect of democracy on many economic and social policy variables. In
contrast, a set of policies identified by Tullock (1987) as regulating the winning and
maintaining of public office―including the legality of capital punishment―is significantly

3 Particularly in light of the fact that in most countries a strong majority of the population are in favor of
the death penalty (Hobson 2013:36). On a more general level, already Stigler and Becker (1977) have
argued that drawing on preferences or values to explain differences in behavior ultimately does not
contribute to understanding or predicting human action.
more likely to be employed by less democratic regimes. While this study provides at least a
crude political economy model of abolition, the results of such a cross-sectional analysis with
only some generic control variables can provide at most a preliminary evaluation of the issue
at hand. Mulligan and Shleifer (2005) conduct a similar analysis to test whether larger
countries are more likely to introduce regulation, as they face increasing economies of scale
in regulatory policies. Although Mulligan and Shleifer cannot provide any evidence of these
suspected increasing economies of scale, they argue that death penalty administration is a
regulatory attempt to solve social problems using methods involving significant fixed costs.
Again, a simple cross-sectional regression analysis backs up their theoretical conjectures that
democracies and smaller countries are more likely to do away with capital punishment.
To sum up: the empirical economic literature on the abolition of the death penalty suffers
from clear methodological shortcomings and provides only ad hoc-models of potential
determinants. In contrast, the recent contributions from other social sciences tend to use more
advanced estimation techniques, but they essentially explain abolition patterns by different
preferences for the death penalty. Here I combine the advantages of both strands of literature
and extend upon their contributions. A political economy model of the determinants of capital
punishment is formulated and stratified Cox regression models are estimated for up to 151
countries over the period from 1950 to 2012 in order to test the generated hypotheses. This
study is also the first to take into account the organization of the judiciary and the political
role of the military as determinants of abolition. Aside from testing an improved political
economy model with a more appropriate estimation technique, this paper also uses more and
higher quality data on the legal status of the death penalty, relative to all previous studies.
The results indicate that abolition is used as a costly political signal in periods of transition,
but also the independence of the judiciary is relevant for the decision to abolish.
In the following Section, theoretical arguments regarding the systematic determinants of the
abolition of the death penalty are introduced and critically discussed. Underlying this
theoretical model is the assumption of rational, self-interested and utility-maximizing
political actors. Section III introduces the data on the death penalty and discusses issues in the
operationalization of its legal status. Some stylized facts are presented. Section IV presents
the independent variables employed to test our hypotheses and their data sources. Bivariate
relationships are discussed to give an indication of what countries have abolished capital
punishment to this day. Section V presents the estimation technique for the survival model
and critically discusses the regression results. Finally, Section VI concludes.
II. A POLITICAL ECONOMY MODEL OF ABOLITION
If politicians were social welfare-maximizers, it could be expected that, ceteris paribus, the
death penalty is abolished first wherever states have the least resources, e.g., in terms of an
effective and impartial judiciary, to apply capital punishment responsibly. High-income
countries with a high-quality justice system should then be the last countries to abolish the
death penalty. However, if politicians are assumed to be opportunistic and motivated by rent
extraction, their interest in the legal status of capital punishment is primarily linked to its
relevance for the duration of their stay in office. Moreover, the appeal and effectiveness of
this instrument depends on a set of―mostly political―country characteristics. The following
theoretical arguments fall into two main groups: (1) country characteristics that determine the
relative attractiveness of the death penalty as a political instrument and (2) situations in which
countries can use the abolition of the death penalty as a costly signal to the political
opposition or the general population.
A country’s political regime type may be crucial for the abolition of capital punishment. In
democracies political power is allocated via contested elections. Dictators, in contrast, face
only a revolution constraint, which forces them to make concessions or use tools of
repression against their citizens. Dictators have to repress opposition and buy loyalty as long
as they are unwilling to democratize, i.e., to commit to costly pro-citizen policies (Acemoglu
and Robinson 2006). The threat of capital punishment is one of the more moderate (and thus
less costly) tools at the command of an autocrat to deter opposition to their rule—at least
when compared to extrajudicial killings and other severe violations of basic human rights.
Lawful measures against opponents are perceived as more legitimate4 and may allow for
economizing on the use of force that is necessary to maintain political power (Moustafa and
Ginsburg 2008). Thus, it can be hypothesized that democratic regimes, because they are less
reliant on the suppression of citizens to avert revolutions, are more likely than autocrats
willing to give up the death penalty.
Yet, also autocrats will not always resort to repression. The abolition of the death penalty is
an institutional change that reallocates de jure and in consequence future de facto political
power to citizens, although less so than democratization. Once the political regime credibly
commits to refrain from the use of drastic measures against opponents, citizens will be able to
organize future collective action against the government at a lower cost. Analogous to what

4 Berggren et al. (2015), e.g., provide evidence that legitimacy may allow large governments to spend
resources with more discretion.
has been argued in Acemoglu et al. (2010), where the elite forms an over-sized military in
order to prevent a military coup, the autocrat may avoid a revolution in the present by making
future revolutions less costly. Consequently it can even be in the interest of an autocrat to
self-commit to not using capital punishment, given that this is cheaper than additional
concessions, stronger repression or full-scale democratization (see Acemoglu et al. 2000 for
the relative attractiveness of these three types of strategies).
Expecting all nondemocratic countries to be equally prone to repressing their citizens might
be too simplistic. Military dictatorships are the regime type under which the use of the death
penalty to safeguard political power may be most tempting. It has been noted that military
regimes have a comparative advantage at repression when compared to civilian autocratic
regimes (Wintrobe 1998:56). South America provides for a number of examples, including
Argentina in 1971 and 1976 as well as Brazil in 1969, where military governments
systematically used the death penalty for political crimes as an instrument of suppression.
A country’s regime type is, of course, not the only political institution of relevance. Previous
studies on the determinants of abolition have ignored that it is not politicians themselves, but
judges who have the power to hand out a death sentence. It is thus important for politicians to
be able to exercise control over critical judicial decisions. With a largely independent
judiciary the threat to use the death penalty against political opponents is considerably less
credible. Judicial independence may consequently increase the probability of abolition, given
that it decreases the relative attractiveness of capital punishment as a political instrument. If
autocrats grant comprehensive independence to judges in order to enhance their legitimacy,
they have no political use for capital punishment anymore. Again, Argentina and Brazil
provide insightful examples. While political cases in Brazil were routed through the judiciary,
which was loyal to the regime, dictators in Argentina had to make more use of extrajudicial
violence (Pereira 2008). Nevertheless, both military regimes maintained the use of capital
punishment, but its abolition may have been more realistic in Argentina.
Irrespective of the independence of a country’s regular courts, politicians often face the
opportunity to bring civilians before a military court or some other specialized court. This is a
popular practice among dictators and allows them to create a largely independent judiciary
for regular cases without completely giving up the judicial system as an instrument to deter
opponents. That practice is described in detail by Moustafa (2008) for the case of Egypt. In
line with the above argument on judicial independence in regular courts, politicians are
expected to be more willing to abolish the death penalty when specialized courts do not exist.
Aside from political regime types and institutional design features that make the death
penalty a differently valuable political instrument, there are also more transient motives for
its abolition. During episodes of turmoil, instability and political change the legal abolition of
capital punishment can be employed as a costly signal that the political regime will not make
use of force to preserve its interests. It has been argued here that abolition can reduce the risk
of a revolution in the short-run and thereby delay full-scale democratization. However, a
swift prohibition of capital punishment and other repressive instruments can as well signal
the seriousness of reform efforts to transfer political power to the majority of citizens after a
dictatorship has ended. At the same time, abolition can reduce the risk of backsliding into
autocratic forms of governance by making the use of suppressive political instruments more
costly to future rulers. The abolition of capital punishment can thus not only be expected in
place of, but also during and following democratic reforms. Futamura and Bernaz (2014:5)
go so far as to argue that it is democratization and not necessarily democracy that drives
abolition. Furthermore, they emphasize the role of post-conflict peacebuilding as a different
form of transition process driving the decision to abolish.
Finally, independent of domestic politics, different mechanisms of spatial policy diffusion
described in Elkins and Simmons (2005) may apply to death penalty abolition. The dispersion
of abolition alters reputational payoffs from (not) abolishing the death penalty and the refusal
of abolitionist countries to extradite criminals wanted for trial on a capital charge may
directly incentivizes countries to abolish. Both politicians and civil societies in ‘nearby’
abolitionist countries may exert pressure on leaders of retentionist countries to abolish the
death penalty or at least limit its use and improve the procedural standards in its application
(Schabas 2002). As with other efforts to promote the rule of law and substantive legal
standards worldwide, most of the pressure to abolish appears to come from democracies.
Furthermore, countries may learn from the practices and experiences of other countries,
particularly when the information is readily available and easily transferable, or they simply
emulate the policies of other countries. All theoretical arguments about spatial dependence
suggest a positive effect of abolition on the propensity of other countries to abolish. The data
do, however, not allow testing the alternative theories against each other.
III. THE LEGAL STATUS OF THE DEATH PENALTY
International law distinguishes two types of death penalties: (1) those for ordinary crimes and
(2) those for exceptional crimes, such as high treason, or crimes committed under exceptional
circumstances, e.g., in wartime. The International Covenant on Civil and Political Rights
(ICCPR) restricts the application of capital punishment to the ‘most serious crimes’. Its
Second Optional Protocol commits signatories to abolish the death penalty, but allows for a
reservation regarding war crimes. The information on the legal status of the death penalty by
Amnesty International (2014) is compiled in accordance with these categories. A country is
coded as “retentionist”, “abolitionist for ordinary crimes” or “abolitionist for all crimes”. In
line with most of the previous empirical literature, abolition in practice is not considered as a
separate category here, as it does not constitute a credible commitment to not applying the
death penalty. Numerous countries have restarted executions after being de facto abolitionist
for many years. Recent examples include Gambia (after over 25 years) and India (after 8
years), both of which restarted executions in 2012. If a country does not carry out the death
penalty, but explicitly leaves this door open―while its courts possibly even hand out new
death sentences―the legality of capital punishment can still limit political competition.
One limitation of the data by Amnesty International has been ignored in previous empirical
studies: its neglect of the fact that a number of countries have reinstated capital punishment
by law. Together with the invention of a category ‘abolitionist in practice’, this omission
could be interpreted as a window-dressing of the abolitionist movement’s success story. For
lack of a systematic collection of cases in which the death penalty was reintroduced by law,
this data was manually coded for the period following 1950, primarily based on Hood and
Hoyle (2015), and cross-referenced with other sources.5 Gathering such information is of
vital importance: First, it adds cases of abolition that have to be considered as events in the
empirical analysis. Second, it determines when we should recognize countries to be at risk of
abolition. Obviously, a country cannot abolish the death penalty during periods when it is
already prohibited. Furthermore, a country’s baseline hazard of abolition may be different,
after it has already abolished and reinstated the death penalty, relative to a country that has no
previous experience with abolition. All of these aspects have been neglected in previous
empirical studies. A final value added is the more precise measurement of the influence that
abolitionist countries may have on the decisions made by other countries.

5 The codings are provided in Appendix A together with the data by Amnesty International (2014).
Amnesty International (2014) reports the legal status of the death penalty in 198 countries,
not all of which are members of the United Nations. By the end of 2012, 93 (47%) of those
countries were retentionist and another seven (4%) had abolished the death penalty only for
ordinary crimes. Although this situation is far from indicating the end of capital punishment,
the change relative to 1950 is remarkable. Back then, just nine countries had no death penalty
and twelve more had it abolished for ordinary crimes only. Almost 30% of the countries that
abolished capital punishment for all crimes between 1950 and 2012 were first abolitionist for
ordinary crimes only. There are no reports of cases in which a country abolished the death
penalty within the same year for ordinary crimes and then for all crimes. Additional variation
in the legal status of capital punishment results from the nine countries that have reinstated
capital punishment since 1950―Argentina reintroduced it even twice. Four of these nine
countries remain retentionist to this day, suggesting that abolition is not a one-way street.
Another measure for the legality of the death penalty is based on its constitutional status. This
data was collected in the Comparative Constitutions Project by Elkins et al. (2009). Law and
Versteeg (2013) independently produced a similar indicator and cross-validated their codings
with the data from Elkins et al. (2009). These conciliated codings are used in the following,
with minor corrections, to determine the constitutional status of death penalty abolition. Law
and Versteeg (2013) distinguish only between the constitutionally entrenched prohibition of
capital punishment for all crimes and the absence of such a clause. Their data supports a
claim by Hood and Hoyle (2009) that countries can make use of constitutional entrenchment
to establish abolition permanently. None of the cases of death penalty reinstatement were in
violation of the constitution and no country has ever removed a ban on capital punishment
from its constitution. By 2012, 48 out of the 185 countries covered by the data had
constitutionally prohibited capital punishment. This amounts to 26% of all countries or 55%
of all fully abolitionist countries.
IV. THE CAUSES OF ABOLITION: DATA AND BIVARIATE RELATIONSHIPS
This section introduces an operationalization of the potential determinants of abolition and
the estimation approach. Descriptive statistics provide a first impression of the association
between presently abolitionist countries and our variables of interest. Data collected by
Cheibub et al. (2010) and updated by Bormann and Golder (2013), is used to identify
political regime types. Their categorization is collapsed into four categories represented by
dummy variables: (1) parliamentary and mixed democracies, (2) presidential democracies, (3)