THE CRUCIAL QUESTION ABOUT THE DEATH PENALTY IS WHETHER ITS DETERRENCE VALUE CAN BE ACHIEVED BY OTHER MEANS WHICH DO NOT INVOLVE THE DEATH OF THE OFFENDER. UNTIL THIS QUESTION IS RESOLVED, CAPITAL PUNISHMENT SHOULD NOT BE USED. IT WOULD BE NECESSARY TO IDENTIFY THAT GROUP OF POTENTIAL OFFENDERS WHO CAN BE DETERRED ONLY BY THE THREAT OF CAPITAL PUNISHMENT, AND FURTHER, TO DETERMINE THE SIZE OF SUCH A GROUP. GIVEN THE EXISTENCE OF SUCH A GROUP AND IF ITS SIZE IS SUFFICIENT TO JUSTIFY THE USE OF THE DEATH PENALTY, THE FOLLOWING CONDITIONS WOULD HAVE TO BE FULFILLED BEFORE DETERRENCE COULD BE ACHIEVED: (1) THE DEATH PENALTY IS MANDATORY, (2) THE USE OF THE DEATH PENALTY IS GIVEN WIDE AND FREQUENT PUBLICITY, (3) CLEARANCE RATES AND CONVICTION RATES FOR DEATH PENALTY OFFENSES MUST BE HIGH. IN ADDITION TO IDENTIFYING THE EXISTENCE AND SIZE OF A GROUP OF POTENTIAL OFFENDERS WHO WOULD BE DETERRED BY THE USE OF THE DEATH PENALTY, ANOTHER GROUP MUST ALSO BE IDENTIFIED--THOSE DRAWN TO DEATH PENALTY CRIMES BECAUSE OF THE PUBLICITY ATTENDING THEM AND THE POSSIBILITY SUCH CRIMES OFFER FOR FULFILLING SELF-DESTRUCTIVE DRIVES. PRESUMABLY, THE DEATH PENALTY WOULD INCREASE THE CRIMES COMMITTED BY THOSE IN SUCH A GROUP. A RECENT ARGUMENT FOR CAPITAL PUNISHMENT REASONS THAT WHETHER OR NOT THE DEATH PENALTY DOES HAVE A DETERRENT EFFECT, IT MAKES SENSE TO RETAIN IT, BECAUSE IF IT DOES NOT DETER, THE NUMBER OF CONVICTED OFFENDERS DYING IN VAIN WOULD BE SIGNIFICANTLY LESS THAN THE NUMBER OF INNOCENT VICTIMS THAT WOULD COME FROM THE ABOLITION OF THE DEATH PENALTY SHOULD IT BE AN EFFECTIVE DETERRENT. SUCH AN ARGUMENT IS NOT CONCLUSIVE BECAUSE IT DOES NOT CONSIDER THAT THOSE DRAWN TO DEATH PENALTY CRIMES BY PUBLICITY AND SELF-DESTRUCTIVE IMPULSES WOULD LOSE INCENTIVE TO COMMIT SUCH CRIMES WERE THE DEATH PENALTY ABOLISHED. ADDITIONALLY, CONSIDERING THE RETENTION OR ABOLITION OF THE DEATH PENALTY ON THE BASIS OF ITS DETERRENT VALUE IGNORES THE ISSUE OF WHETHER IT IS A JUST PUNISHMENT FOR THE CRIMES FOR WHICH IT IS MANDATORY. NOTES ARE PROVIDED. (RCB)