Tuesday, January 29, 2008

Why I Support Capital Punishment, Part 2

Published 01.29.08 at Townhall.com
Published 02.12.08 at Crosswalk.com

Several developments over the last three months seem to indicate that our society is at a moment of decision regarding capital punishment, which behooves us to think seriously about this issue and clarify the very muddy waters people have made of it. As I explained in my previous column, there are five basic purposes to a justice system: incapacitation, rehabilitation, retribution, deterrence, and symbolism. Between the two alternative murder penalties of execution and life in prison without the possibility of parole (LIPWPP), we saw that incapacitation and rehabilitation are essentially moot issues. Retribution, however, strongly favors capital punishment. Let’s continue our analysis.


Deterrence is the goal of giving people who might otherwise be willing to commit a crime a strong enough disincentive to prevent them making this choice.

This is the most complex part of the discussion and the part most misunderstood by nearly every commentator on both sides.

Given the frequency with which they contradict each other, studies have proven useless in answering definitively whether capital punishment deters. In the presence of such unclarity, it’s left to reason to decide, and reason rather counter-intuitively indicates that capital punishment does not deter. Despite wholeheartedly supporting capital punishment myself, I think that emphasizing deterrence is the signature error most of my intellectual allies make when discussing the issue.

Capital punishment does not deter because the capital offender is not the right sort of person.

There are three kinds of people in any society: the good, the barbaric, and the rational. Good people are self-governing enough that they either do not want to commit crimes or else restrain themselves morally from committing them. Clearly, capital punishment does not deter such people because decency or morality gets there first. Barbaric people are so much like animals that they are incapable of stopping themselves from doing the wicked things they want to do. Such people cannot be deterred because they lack the combination of prudence and self-control which deterrence presupposes. Instead, they must be stopped with the use of force. Rational people are those who want to do illegal things but are self-interested enough that they can perform calculations about risk and reward and decide to avoid committing a crime when its legal penalty outweighs its potential benefits. Thus, deterrence is only an issue with respect to rational people.

The problem is that murderers are not rational in this way.

For one thing, they are more likely to be barbaric than to be rational. Furthermore, at the time of a murder, even people who might otherwise be rational or good usually have become momentarily barbaric. This means that they are not performing the sort of calculus or exercising the sort of self-control necessary for deterrence to stop them. But even if they were, I’m hard pressed to take seriously the claim that capital punishment would deter them whereas LIPWPP would not. If they are indeed rational at the moment, surely LIPWPP represents a massive enough disincentive to deter someone from murder. It’s hard to imagine a potential murderer saying to himself, “I’m willing to kill this person because the worst it could cost me is LIPWPP. If only my state had the death penalty, I surely wouldn’t do this thing.”

Even if you can imagine such an internal dialogue in the mind of a potential capital offender, the marginal deterrent difference between execution and LIPWPP would be further weakened by several factors. Murderers always assume they will not be caught. In the event they imagine being captured, they think that they will be able to escape punishment by some legal technicality or a skillful defense. If convicted, they anticipate acquittal or reduction upon appeal. Even so, they know they will likely be alive for several decades while this process unfolds. And in the end, there’s always the hope of clemency or escape. All of these considerations significantly mitigate whatever deterrent power execution has, but there is a much more significant problem.

Criminals don’t know the law that well.

Other than in New Jersey and Texas, I doubt the average criminal actually knows what the current state of the law regarding capital crimes is. And if he does, he surely might imagine that it could change between now and his own unlikely trial or be nullified by some layer of the judiciary including the Supreme Court. All of these factors create such an ambiguity in the mind of even that rare highly-informed criminal who retains enough rationality just prior to the commission the crime for it to matter that the difference in deterrent effect between execution and LIPWPP is effectively diluted to zero.

But here’s a thought experiment for you. Imagine that Mr. H. wants to kill his wife and lives near the border of a state which executes and whose neighbor state does not. Other than in the movies, can you really imagine the long process he would have to go through that would result in him saying, “Well, I guess I’ll drive her over next door before I kill her so that, just in case I’m caught, prosecuted, and lose my appeals over 25 years, at least I’ll get to live out the remaining 15 years of my life rather than die by lethal injection?” Such fantasy is beyond even my nimble imagination.

Dennis Prager once said in a column on this topic that a state which made murders committed on certain days of the week punishable by death but by LIPWPP on the others would surely find a shift from the former to the latter for homicides. Though his hypothetical may be correct for a small subset of criminals, I would instead say that waiting a day to kill is very different from transporting a victim across state lines or selecting residents of another state for victims based on such calculations. Weird hypotheticals produce unreliable conclusions. I know Dennis, and I think his error stems from thinking criminals are even remotely as rational as he. They are not.
Understanding all of this, it should now be clear that capital punishment does not deter. But what if it did?

You may disagree with every point in my prior analysis, and I’m sure many of you will relish doing so. But for the sake of argument, allow me to grant that threatening people with execution for murder might actually deter. Would that justify using it? I say not, and I’ll explain why in my next column on this topic.

Saturday, January 26, 2008

Why I Support Capital Punishment, Part 1

Published 01.26.08 at Townhall.com
Published 02.04.08 at Crosswalk.com

In November, the United Nations called for a worldwide moratorium on the death penalty. In December, Gov. John Corzine signed legislation abolishing the death penalty in New Jersey. Now, in January, the Supreme Court has heard arguments on whether lethal injection violates the 8th Amendment’s ban on Cruel and Unusual punishment. So, with New Jersey and the UN on one side and Texas and Iran on the other side, the Supreme Court seems poised to pick for us all between the new morality and the old.

Now, granted, New Jersey hadn’t actually executed anyone in 45 years, so this was a bit like Bill Cosby announcing that he will stop using profanity in his sketches. But the official decision is still noteworthy, as is the fact that New Mexico, Montana, and Nebraska all came close to doing the same thing this year. In the face of the seemingly unstoppable modern sensibility, why would anyone continue to support executing murderers? Well, I’ll tell you, since you asked.

There are five possible objectives of any legal system: incapacitation, rehabilitation, retribution, deterrence, and symbolism. Starting with these values, let’s explore the differences between the two alternatives: capital punishment and life in prison without he possibility of parole.


Incapacitation is the goal of making it physically impossible for the criminal to commit further crimes against his fellow human beings.

Clearly, both capital punishment and life in prison without the possibility of parole fully incapacitate criminals with respect to the general society. The only exception is if the prisoner escapes, but given that there is such a long delay between conviction and execution that death row becomes a de facto prison sentence until then, there is less distinction here than initially appears. But, for the sake of argument, let’s say that once the two paths diverge, execution is 100% incapacitation and LIPWPP (Pronounced Lip-Whip) is 99+% incapacitation. As an advocate of the death penalty, I’m not interested in quibbling about numbers, so I’ll grant that incapacitation is the same for both alternatives.

Within the prison community, however, things are not so clear. Unless LIPWPP is upgraded to permanent solitary confinement, such prisoners will still be a threat to guards and other prisoners during their confinement. This is no trivial difference given the obligations of prisons to protect prisoners from each other. Nonetheless, as long as such isolation is the form of sentencing advocated, I’m willing to grant that incapacitation is a non-issue in this debate.


Rehabilitation is the goal of reforming the criminal so that he can be reintegrated into society as a well-behaved, productive citizen.

Several recent studies have shown that execution is almost completely unsuccessful as a method of rehabilitating the offender. However, given permanent residence in isolation within a prison, LIPWPP isn’t really rehabilitative either. Thus, both alternatives are equal again on this value, at least in the sense of preparing a criminal for re-entry into general society.

However, if one means by rehabilitation the service done to the criminal himself of helping him have a profitable and meaningful life while incarcerated, things are not so clear. On the one hand, it is possible that a murderer would repent and dedicate himself to self-improvement. On the other hand, it is possible that a murderer would go on hating and descend into a spiral of self-destructive seething. Since quantifying these probabilities exceeds my abilities, I’ll optimistically estimate that the net chance of self-development benefits obtained during LIPWPP is offset by the equally small advantage in incapacitation certainty obtained through execution. So, rehabilitation and incapacitation taken together become moot issues.


Retribution is the goal of restoring the scales of moral justice to balance as possible.

For instance, when someone thieves, the objective is to restore the victim to his condition prior to the loss. This requires restitution equal to the theft plus a penalty to cover the lost use of that money and the intangible damage to his confidence and security. Civil law is the easiest illustration for understanding retribution. We quantify all sorts of things in civil courts for the sake of saying what the offender owes, and the idea is to restore balance by taking from the criminal and repaying the victim.

But there are always two victims of every crime: the particular person and the moral fabric of the society itself. For every infraction against this fabric, we asses varying degrees of penance including jail time, community service, and fines. These all have their own merits, but the retributive purpose is to make the criminal pay enough to restore balance to the moral universe just as he must to the victim. Not only is this about compensating those who have lost, but it is about allowing the offender the privilege of paying his debt to society so that he may satisfy the demands of just retribution. Once paid, we are no longer owed, and he not longer owes.

What, then is the proper retribution for murder? As death penalty opponents are so fond of saying, “Executing the murderer will not bring his victim back to life.” That, of course, is true. It’s just as true, however, that giving him LIPWTPP will also fail to accomplish a resurrection. And that’s the point. There is simply nothing the murderer can do to truly restore the social fabric to the status quo ante for the obvious reason that there is no way to replace missing people. Nonetheless, as history and the Bible so clearly have held, blood alone can atone for shed blood. By requiring his life of him, we make him pay the only correct price and we also allow him to fully pay it. This balances both the moral fabric as well as the murderer’s personal register.

Once we comprehend this distinction between murder and all other crimes (which can be restituted for), it should be clear that retribution not only justifies execution, it requires it. Execution is the only correct penalty-in-kind for murder, and retribution is the only value so far analyzed which justifies taking this most precious of payments from someone.

In my next column, I will consider the issues of deterrence and symbolism before moving on to discuss the other issues in this complex and often difficult issue.