It seems that Hamas has missed the point of Israel’s newly expanded death penalty, which the Knesset passed in March of this year. The legislation, called the Death Penalty for Terrorists Law, mandates death by hanging for acts of terrorism. (See Israel Doubles Down on Death.)
Rather than urging its fighters to exercise restraint in the face of this new punishment, Hamas leadership has called for an escalation of their activities, focused on kidnapping Israel Defense Forces soldiers and using them to secure the release of imprisoned Hamas fighters. As reported by The Jerusalem Post:
an internal [Hamas] communique reportedly emphasized what Hamas described as the strategic importance of abducting Israeli soldiers, calling it “the only path” to securing the release of Palestinian prisoners held by Israel.
This raises the temperature once again on the cycle of violence between Israel and Hamas, quite the opposite of the deterrence that the law is supposed to deliver.
It probably comes as no surprise that an organization like Hamas, one that promotes and glorifies martyrdom, would respond in such a fashion to a supposedly-deterrent law.
But religiously-inspired martyrs are not the only ones who fail to be swayed in their actions by the punishment of death. In fact, there’s no conclusive proof at all that the death penalty curbs acts of non-terrorist violence, and it’s possible that it sometimes encourages it.
Economists and criminologists have spent decades debating whether executions reduce homicide.
In 2003, when the country was still reeling from 9/11, Representative John R. Carter (R-TX) introduced the Terrorist Penalties Enhancement Act. Its purpose was to expand the federal death penalty to include any act of domestic or international terrorism that resulted in death.
Congress held a hearing to discuss the proposed legislation. Economist Dr. Joanna Shepherd testified that executions significantly deterred murders. She cited 13 modern studies on capital punishment’s deterrent effect and claimed that the finding of deterrence was “unanimous”, with each execution deterring between 3 and 18 murders.
This testimony, which probably came as music to the ears of many on the Congressional committee, has since been…shredded is perhaps too harsh a word…but certainly rigorously challenged.
By the mid-2000s, a number of economists and criminologists re-examined the same data sets studied by Shepherd and found that the results were extremely sensitive to modeling choices.
The most influential critics were John Donohue and Justin Wolfers. In their paper “Uses and Abuses of Empirical Data in the Death Penalty Debate,” they argued that small changes in statistical assumptions could flip the results from “many lives saved” to “many lives lost.”
One of their memorable observations was that using slightly different specifications could produce estimates ranging from hundreds of lives saved per execution to dozens of lives lost per execution, suggesting the models were unstable rather than revealing a genuine causal effect.
In 2012 the National Research Council convened a panel to review the entire modern deterrence literature. The panel’s conclusion was striking:
Research to date is not informative about whether capital punishment decreases, increases, or has no effect on homicide rates.
The panel specifically recommended that these studies not be used to make policy judgments about deterrence.
Interestingly, by the time of the NRC panel, Shepherd herself had published work suggesting that executions did not have uniform effects. In a 2005 article she reported that while executions appeared to deter murders in only six states, in thirteen states executions increased murder rates, and in eight states appeared to have no measurable effect. A far cry from the “unanimous” deterrence she’d reportedly found earlier.
The claim that executions deter violence rests on a seemingly straightforward proposition: people fear death and will therefore avoid conduct that could lead to execution.
The classic deterrence model assumes that a potential offender:
Knows the punishment.
Considers the punishment before acting.
Believes there is a meaningful chance of being caught.
Weighs costs and benefits rationally.
Changes behavior accordingly.
That image does not jibe with the reality of violent crime.
Criminologists often distinguish between instrumental crimes and expressive crimes. Instrumental crimes are planned and goal-oriented: “I want money, so I’ll rob a bank.” Expressive crimes arise from rage, panic, jealousy, intoxication, mental illness, fear, humiliation, or escalating conflict.
Estimates put from 70% to 90% of homicides into the second category.
Most murders are not carefully planned enterprises. They occur during domestic disputes, arguments, robberies gone wrong, gang conflicts, episodes of intoxication, mental health crises, or moments of explosive anger. In such circumstances, the prospect of a punishment that might be imposed years or decades in the future is often nowhere in the offender’s mind. The person is not comparing life imprisonment with execution. They’re not thinking in terms of consequences; they are reacting to the immediate pressures, fears, impulses, or emotions of the moment.
Even where violence is planned, deterrence is not always straightforward. Terrorist organizations, insurgent groups, and ideological movements frequently prize sacrifice and martyrdom. Their members may regard the risk of death not as a reason to retreat but as a badge of commitment. In those settings, harsher punishments can produce unintended consequences, creating new incentives for retaliation, hostage-taking, or reciprocal violence.
Societies punish their citizens for many reasons: incapacitation, accountability, public safety, and moral condemnation among them.
But deterrence is a specific claim. It is an empirical claim. If governments wish to invoke the death penalty as a tool for preventing violence, they should be able to demonstrate that the people whose behavior they seek to change are actually deterred by the penalty. That’s something they have failed to do.
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