CAPITAL PUNISHMENT’S SLOW DEATH: George Will’s latest column explains his own opposition to the death penalty. He elaborates:
The conservative case against capital punishment, which 32 states have, is threefold. First, the power to inflict death cloaks government with a majesty and pretense of infallibility discordant with conservatism. Second, when capital punishment is inflicted, it cannot later be corrected because of new evidence, so a capital punishment regime must be administered with extraordinary competence. It is, however, a government program. Since 1973, more than 140 people sentenced to death have been acquitted of their crimes (sometimes by DNA evidence), had the charges against them dismissed by prosecutors, or been pardoned based on evidence of innocence. For an unsparing immersion in the workings of the governmental machinery of death, read “Just Mercy” by Bryan Stevenson, executive director and founder of the Equal Justice Initiative.
Third, administration of death sentences is so sporadic and protracted that their power to deter is attenuated. And expensive, because labyrinthine, legal protocols with which the judiciary has enveloped capital punishment are here to stay. Granted, capital punishment could deter: If overdue library books were punishable by death, none would be overdue. But many crimes for which death is reserved, including Tsarnaev’s crime of ideological premeditation, are especially difficult to deter.
While I normally agree with Will on most issues, I must disagree on this one. The conservative case supporting capital punishment has nothing to do with the “majesty” or “infallibility” or even “competence” of government (God forfend). Conceding that mistakes both can and will, inevitably, be made, Will wants to know how can one support the death penalty? This is an important question, but one for which there is a response that is too often overlooked. The best articulation of the answer comes from Clatstop County, Oregon District Attorney Joshua Marquis [full disclosure: Josh is my brother-in-law], an elected Democrat D.A. who is one of the most prominent supporters of the death penalty:
[Often cited by death penalty opponents is a] study by Professor Samuel Gross that came out of a Northwestern Law School symposium and subsequent issue of their Journal of Criminal Law. I used Gross’ own numbers to estimate the incidence of real-life exonerations, as opposed to those in TV shows or movies. Gross cited about 390 cases from 1989 to 2003 where he and his team believed serious felony sentences were unfairly handed down against innocent defendants. . . . Gross posits there must be many more exonerations than he identified because he asserts . . . that in many cases DNA or a recantation by a key witness does not exist. So I rounded Gross’s number up to 400 and multiplied it by ten, yielding 4,000 exonerations—far more than I believe exist for the time period. I divided the 4,000 by 15 million, the number of felonies committed during the same period, yielding a “rightful” conviction rate of 99.93%. My article in the New York Times drew howls of protest, many attacking my math, pointing out that my base statistic of 15 million was all felonies.
Okay, so let’s refine the numbers down to just willful homicide and forcible rape. This is narrower than Gross’s sample and amounts to about 1.5 million. Move the decimal one point and you have a “rightful” conviction rate of 99.72%. Small consolation if you are in that .28 of one percent.
The wrongful conviction rate should be lower and prosecutors can do more than anyone in the criminal justice system to make sure that happens by being very discriminating in bringing capital cases. Pharmacists and doctors separately kill 10,000 Americans—by accident—every year, but we don’t ban prescriptions or elective surgery. We try to find out what went wrong and fix it.
Garrett and his fellow opponents of the death penalty—and then true life, and then mandatory sentencing of any sort—claim they really just want to fix the problem. But, as Justice Antonin Scalia acidly pointed out in his concurrence in Kansas v. Marsh, they aren’t interested in fixing the system, but in tearing it down. I have no doubt their beliefs are sincere and deeply held, but if we are to debate such an emotional issue we should do so with context, not ignoring the stories that don’t make the front page or are relegated to the newspaper’s “airplane pages” (B-2, C-5, etc).
States are doing all kinds of things to prevent the errors . . . better trained and paid public defenders and prosecutors, and a true national DNA bank . . . .
I can understand how libertarians generally don’t trust the government to get things right and accordingly might be even more leery of the government killing someone. Professor Cass Sunstein proposed in “Is Capital Punishment Morally Required: The Relevance of Life-Life Tradeoffs” that if the series of nonideological studies done in the last decade are right, then having a death penalty spares between 10 and 24 innocent victims of murder. How can we abandon indisputably innocent men, women, and children to homicide?
So there is a very small “wrongful” conviction rate, (less than one-half percent) and it seems to be getting smaller and smaller due to advances in DNA and other scientific evidence, as well as a bigger, well-heeled and experienced capital crimes defense bar. And capital punishment does have a deterrent effect– a point even Will seems to concede, albeit reluctantly. This deterrence saves innocent lives, and overall, more innocent lives are saved than lost due to the death penalty. And IMHO, there is an added societal bonus: Capital punishment serves the important societal objective of good, old fashioned retribution–the recognition that crime, particularly violent crimes capable of triggering the consideration of capital punishment, are inherently harmful to the very fabric of society. Retribution is a justification for punishment that liberals/progressives have long since forgotten/abandoned, but conservatives and libertarians should not. (The issue of over-criminalization is a separate issue, but I will assume no one thinks punishment for murder is an example of over-criminalization).
I am content to let the people of each state decide whether the “costs” associated with the death penalty outweigh the “benefits” society derives. Each state should be perfectly free to decide whether it wishes to continue its death penalty as a matter of state law. But as for the continuing attempts of death penalty opponents to try to “constitutionalize” their opposition, that is another question.
As a constitutional matter, capital punishment was clearly contemplated by the Framers, as the Due Process Clauses of the Fifth and Fourteenth Amendments state that government may not deprive individuals of “life, liberty or property” without due process of law, the necessary implication of which is that “life” may be deprived by state and federal governments, provided “due process” is provided. And the Supreme Court itself has stated, most recently in Gregg v. Georgia, that the Eighth Amendment’s prohibition against cruel and unusual punishments does not demand abolition of the death penalty for those who are mentally competent and adults.
If the death penalty is indeed going to die a slow death, it should come from a thoughtful, democratic debate within each State, not through litigation aimed at getting unelected federal judges to impose a “one size fits all” constitutional “solution” on this controversial topic.